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JUlTliJUlTl  i!^l 


THE    CASE 


OF 


THE  CHEROKEE    NATION 

against 

THE   STATE   OF   GEORGIA: 


ARGUED  AND  DETERMINED  AT 


THE  SUPREME  COURT  OF  THE  UNITED  STATES, 

JANUARY  TERM   1831. 


AN    APPENDIX, 

Containing  the  Opinion  of  Chancellor  Kent  on  the  Case  ;  the  Treaties  between 

the  United  States  and  the  Cherokee  Indians  ;  the  Act  of  Congress  of 

1802,  entitled  '  An  Act  to  regulate  intercourse  with  the  Indian 

tribes,  &c.';  and  the  Laws  of  Georgia  relative  to  the 

country  occupied  by  the  Cherokee  Indians, 

within  the  boundary  of  that  State. 


BY   RICHARD   PETERS, 

COUNSELLOR  AT  LAW. 


JOHN  GRIGG,  9  NORTH  FOURTH  STREET. 
1831. 


Entered  according  to  the  act  of  congress,  in  the  year  1831,  hy  Richard  Peters,  in  the 
Clerk's  office  of  the  District  Court  of  the  Eastern  District  of  Pennsylvania. 


Philadelphia: 

Printed  by  James  Kay,  Jun.  &.  Co. 

No.  4,  Minor  Street. 


CONTENTS. 


The  Bill  filed  on  behalf  of  The  Cherokee  Nation  vs.  The  State 

of  Georgia,  -  -  -  -  -         -      2 

The  Supplemental  Bill,  -  -  -  -         -     32 

Argument  of  Mr  Sergeant,       -  -  -  -         -     38 

Argument  of  Mr  Wirt,  -  -  -  -         -     65 

The  Opinion  of  the  Court,  delivered  by  Chief  Justice  Marshall,  159 
The  Opinion  of  Mr  Justice  Johnson,     -  -  -         -  164 

The  Opinion  of  Mr  Justice  Baldwin,    -  -  -         -  175 

The  Dissenting  Opinion  of  Mr  Justice  Thompson,  concurred 

in  by  Mr  Justice  Story,  -  -  -  -  194 

Appendix,  No.  I.  Containing  the  Opinion  of  Chancellor  Kent,  225 
Appendix,  No.  II.  Containing  the  Treaties  between  the  Uni- 
ted States  of  America  and  the  Cherokee  Nation,  249 
Appendix,  No.  III.  Containing  the  Act  of  Congress  passed 
1802,  entitled  '  An  Act  regulating  Intercourse  with  the 
Indian  Tribes,  &c.'        -             -             -             -             -  274 

Appendix,  No.  IV.  Containing  the  Acts  passed  by  the  Legisla- 
ture of  Georgia,  relative  to  the  country  occupied  by  the 
Cherokee  Indians,  within  the  boundaries  of  the  State  of 
Georgia,  -  -  -  -  -  -  281 


^ 


THE  CHEROKEE  NATION 


vs. 


THE   STATE  OF  GEORGIA. 


DECIDED  .IN  THE  SUPREME  COURT  OF  THE  UNITED  STATES, 
AT  JANUARY  TERM  1831. 


Motion  for  an  injunction  to  prevent  the  execution  of  certain  acts  of  the  legisl 
ture  of  the  slate  of  Georgia  in  the  territory  of  the  Cherolsee  nation  of  Indians, 
on  behalf  of  the  Cheroliee  nation;  they  claiming  to  proceed  in  the  supreme 
court  of  the  United  States  as  a  foreign  state  against  the  stale  of  Georgia;  under 
the  provision  of  the  constitution  of  the  United  States,  which  gives  to  the  court 
jurisdiction  in  controversies  in  which  a  state  of  the  United  States  and  the 
citizens  thereof,  and  a  foreign  state,  citizens,  or  subjects  thereof,  are  parties. 

The  Cherokee  nation  is  not  a  foreign  state,  in  the  sense  in  which  the  term 
"  foreign  state"  is  used  in  the  constitution  of  the  United  States. 

The  third  article  of  the  constitution  of  the  United  States  describes  the  extent 
of  tlie  judicial  power.  The  second  section  closes  an  enumeration  of  the  cases 
to  which  it  extends,  with  "  controversies  between  a  state  or  the  citizens 
thereof,  and  foreign  states,  citizens  or  subjects."  A  subsequent  clause  of  the 
same  section  gives  the  supreme  court  oiiginal  jurisdiction  in  all  cases  in  which 
a  state  shall  be  a  party — the  state  of  Georgia  may  then  certainly  be  sued  in 
this  court. 

The  Cherokees  are  a  state.  They  have  been  uniformly  treated  as  a  state  since 
the  settlement  of  our  country.  The  numerous  treaties  made  with  (hem  by  the 
United  States  recognize  them  as  a  people  capable  of  maintaining  the  relations 
of  peace  and  war;  of  being  responsible  in  their  political  character  for  any 
violation  of  their  engagements,  or  for  any  aggression  committed  on  the  citi- 
zens of  the  United  States,  by  any  individual  of  their  community.  Laws  have 
A 


2  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  Slate  of  Georgia.] 

been  enacted  in  the  spirit  of  these  treaties.  The  acts  of  our  government 
plainly  recognize  the  Cherokee  nation  as  a  state;  and  the  courts  are  bound  by 
those  acts. 

The  condition  of  the  Indians  in  relation  to  the  United  States,  is  perhaps  unlike 
that  of  any  other  two  people  in  e.\istence.  In  general,  nations  not  owing 
a  common  allegiance  are  foreign  to  each  other.  The  term  foreign  nation  is 
with  strict  propriety  applicable  by  either  to  the  other.  But  the  relation  of  the 
Indians  to  the  United  States  is  marked  by  peculiar  and  cardinal  distinctions 
which  exist  no  where  else. 

The  Indians  are  acknowledged  to  have  an  unquestionable,  and  heretofore  an 
unquestioned  right  to  the  lands  they  occupy;  until  that  right  shall  be  extin- 
guished by  a  voluntary  cession  to  our  government.  It  may  well  be  doubted 
whether  those  tribes  which  reside  within  the  acknowledged  boundaries  of  the 
United  States  can  with  strict  accuracy  be  denominated  foreign  nations.  They 
may  more  correctly  perhaps  be  denominated  domestic  dependent  nations. 
They  occupy  a  territory  to  which  we  assert  a  title  independent  of  their  will, 
which  must  take  effect  in  point  of  possession  when  their  right  of  possession 
ceases — meanwhile  they  are  in  a  state  of  pupilage.  Their  relations  to  the 
United  States  resemble  that  of  a  ward  to  his  guardian.  They  look  to  our 
government  for  protection;  rely  upon  its  kindness  and  its  power;  appeal  to  it  for 
relief  to  their  wants;  and  address  the  President  as  their  great  father. 

The  bill  filed  on  behalf  of  the  Cherokees  seeks  to  restrain  a  state  from  the  forci- 
ble exercise  of  legislative  power  over  a  neighbouring  people  asserting  their  inde- 
pendence; their  right  to  which  the  state  denies.  On  several  of  the  matters 
alleged  in  the  bill,  for  example  on  the  laws  making  it  criminal  to  exercise  the 
usual  powers  of  self  government  in  their  own  country  by  the  Cherokee  nation, 
this  court  cannot  interpose,  at  least  in  the  form  in  which  those  matters  are 
resented.  That  part  of  the  bill  which  respects  the  land  occupied  by  the 
Indians,  and  prays  the  aid  of  the  court  to  protect  their  possessions,  may  be 
more  doubtful.  The  mere  question  of  right  might  perhaps  be  decided  by  this 
court,  in  a  proper  case,  with  proper  parties.  But  the  court  is  asked  to  do  more 
than  decide  on  the  title.  The  bill  requires  us  to  control  the  legislature  of 
Georgia,  and  to  restrain  the  exertion  of  its  physical  force.  The  propriety  of 
such  an  interposition  by  the  court  may  well  be  questioned.  It  savours  too 
much  of  the  exercise  of  political  power,  to  be  within  the  proper  province  of  the 
judicial  department. 

ON  the  27th  of  December  1S30  and  1st  of  January  1831, 
a  notice  was  served  on  the  governor  and  attorney  general  of 
the  state  of  Georgia,  signed  by  John  Ross,  principal  chief  of 
the  Cherokee  nation,  stating  that  on  Saturday  the  5th  day  of 
March  1831,  at  the  city  of  Washington,  in  the  district  of 
Columbia,  the  Cherokee  nation  would,  by  their  counsel,  move 
the  supreme  court  of  the  United  States,  expected  to  be  then 
in  session,  for  an  injunction  to  restrain  the  state  of  Georgia, 
the  governor,  attorney  general,  judges,  justices  of  the  peace, 
sheriffs,  deputy  sheriffs,  constables,  and  all  other  the  officers, 
agents  and  servants  of  that  state,  from  executing  and  enforcing 


JANUARY  TERM  1831.  3 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

the  laws  of  Georgia  or  any  of  those  laws,  or  serving  process, 
or  doing  any  thing  towards  the  execution  and  enforcement  of 
those  laws  within  the  Cherokee  territory,  as  designated  by 
treaty  between  the  United  States  and  the  Cherokee  nation. 

The  notice  also  stated,  that  the  motion  would  be  made  on 
the  grounds  set  forth  in  a  bill,  a  copy  of  which  was  handed  to 
the  governor  and  attorney  general  of  the  state  of  Georgia, 
with  the  notice;  which  bill  would  be  supported  by  the  necess- 
ary affidavits  and  documents. 

On  the  day  named  in  the  notice,  Mr  Sergeant  and  Mr 
Wirt  appeared  as  counsel,  on  behalf  of  the  Cherokee  nation — 
and  moved  the  court  for  an  injunction,  as  stated  in  the  no- 
tice.    The  state  of  Georgia  did  not  appear. 

The  bill  and  a  supplement  to  the  bill  were  as  follow: 
To  the  Honourable  the  Chief  Justice  and  the  Associate  Jus- 
tices of  the  Supreme  Court  of  the  United  States,  sitting  in 

chancery. 

Respectfully  complaining,  show  unto  your  honours,  the 
Cherokee  nation  of  Indians,  a  foreign  state,  not  owing  alle- 
giance to  the  United  States,  nor  to  any  stale  of  this  union,  nor 
to  any  other  prince,  potentate,  or  state,  other  than  their  own; 

That,  from  time  immemorial,  the  Cherokee  nation  have 
composed  a  sovereign  and  independent  state,  and  in  this  char- 
acter have  been  repeatedly  recognized,  and  still  stand  recog- 
nized by  the  United  States,  in  the  various  treaties  subsisting 
between  their  nation  and  the  United  States. 

That,  long  before  the  first  approach  of  the  white  men  of 
Europe  to  the  western  continent,  the  Cherokee  nation  were  the 
occupants  and  owners  of  the  territory  on  which  they  no  w  reside ; 
deriving  their  title  from  the  Great  Spirit,  who  is  the  common 
father  of  the  human  family,  and  to  whom  the  earth  belongs. 

That  on  this  territory  they  and  their  ancestors,  composing 
the  Cherokee  nation,  have  ever  been,  and  still  are,  the  sole 
and  exclusive  masters,  and  governed,  of  right,  by  no  other 
laws,  usages  and  customs,  but  such  as  they  have  themselves 
thought  proper  to  ordain  and  appoint. 

That,  in  the  year  of  the  Christian  era  one  thousand  seven 
hundred  and  thirty-two,  the  monarch  of  several  islands  on  the 
eastern  coast  of  the  Atlantic  ocean,  under  the  name  and  style 
of  George  II.  king  of  Great  Britain  and  Ireland,  by  a  charter 


4  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia,] 
to  a  company  of  his  own  subjects  there  residing,  affected  to 
grant  to  them  all  the  country  on  this  continent  lying  between 
the  Savannah  and  Alatamaha  rivers.  That  this  country  was,  at 
that  time,  occupied  and  owned  by  several  distinct  sovereign 
and  independent  nations  of  Indians,  and,  among  others,  by 
the  Cherokee  nation  ;  and  that  the  monarch  who  affected  to 
grant  it  had  no  title  to  it  whatever.  These  complainants  are 
informed,  and  believe,  that  the  only  title  to  which  he  pre- 
tended was  derived  from  the  circumstance,  that  a  ship  manned 
by  his  subjects  had,  about  two  centuries  and  a  half  before, 
sailed  along  the  coast  of  the  western  hemisphere,  from  the 
fifty-sixth  to  the  thirty-eighth  degree  of  north  latitude,  and 
looked  upon  the  face  of  that  coast  without  even  landing  upon 
any  part  of  it.  This,  they  are  informed  and  believe,  has  been 
called  a  title  hy  first  discovery;  which  is  not  true,  even  in 
point  of  fact,  as  against  the  Cherokee  nation  and  other  Indian 
nations  :  for  they  had  discovered  and  occupied  it  long  before 
the  first  European  ship  had  ventured  to  crosg  the  Atlantic 
ocean  ;  the  time  of  their  original  discovery  and  settlement  of 
it  being  buried  in  the  night  of  ages  beyond  the  era  of  Chris- 
tianity, and  probably  far  beyond  the  period  when  the  British 
islands,  themselves  the  residence  of  heathen  savages  and  bar- 
barians, became  a  prey  to  a  heathen  conqueror  from  Rome. 

That  this  pretended  title  by  prior  discovery,  whatever  may 
be  its  effect  on  the  equally  pretended  claims  by  discovery  of 
other  European  sovereigns,  can  have  no  effect  in  divesting  the 
prior  title  of  the  Indian  occupants  and  settlers  of  this  coun- 
try ;  and,  as  they  are  informed  and  believe,  has  never  been 
pretended,  by  the  European  sovereigns  themselves,  to  give 
them  a  right  to  oust  the  Indian  proprietors  from  their  poss- 
ession. That  the  utmost  length  to  which  they  have  carried 
the  unjust  pretensions  derived  from  their  alleged  discovery, 
is,  that  the  first  European  discoverer  has  the  prior  and  exclu- 
sive right  to  purchase  these  lands  from  the  Indian  proprietors, 
as  against  all  other  European  sovereigns  ;  a  principle  settled 
among  themselves  for  their  own  convenience,  in  adjusting 
their  mutual  accounts  of  rapine  on  the  western  world  ;  a  prin- 
ciple to  which  the  Indian  proprietors  have  never  given  their 
assent,  and  which  they  deny  to  be  a  principle  of  the  natural 
law  of  nations,  or  as  in  any  manner  obligatory  on  them. 


JANUARY  TERM  1831.  5 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
That,  whatever  may  be  the  theory  of  this  wild  and  chime- 
rical title  by  discovery,  as  among  the  European  sovereigns 
themselves,  these  complainants  are  informed  and  believe,  that 
it  was  never  alleged  by  George  II.  the  king  of  Great  Britain 
and  Ireland,  or  by  his  aforesaid  grantees,   the  Georgia  com- 
pany, in  1732,  or  at  any  time  since,  that  the  charter  so  granted 
gave  to  that  company  any  right  to  disturb  or  to  question  the 
exclusive  right  of  possession  by  the  Indians,  or  to  interfere  in 
any  manner   with    their   own    self  government  within    their 
respective  dominions.     That,  on  the  contrar}^,  the  first  adven- 
turers under  that  charter,  on  their  landing  at  the  present  site 
of  the  city  of  Savannah,  entered  into  a  treaty  with  the  Creek 
nation  of  Indians,  who  were  admitted  to  be  the  proprietors 
of  the   lands   in  that  quarter  of  the  countrj''  covered  by  the 
aforesaid  charter,  and  received  from  them  a  voluntary  cession 
of  a  part  of  those  lands  for  a  valuable  consideration  ;  and  the 
Creeks  were  left  under  the  peaceable  government  of  their  own 
laws,  no  pretension  having  been  then,  or  at   any  subsequent 
time,  set  up,  that  the  charter  conferred  on  the  grantees  any 
authority  to    introduce  the  system  of  British   laws  into  the 
country  owned  by  the  Indians.     That  various  treaties  have 
been,  from  time  to  time,  made  between  the  British   colony 
in  Georgia,  between  the  state  of  Georgia,  before  her  confede- 
ration with  the  other   states,  between  the  confederated  states 
afterwards,  and,  finally,  between  the  United  States  under  their 
present  constitution,  and  the  Cherokee  nation,  as  well  as  other 
nations  of  Indians  ;  in  all  of  which  the  said  Cherokee    nation 
and  other  nations  have  been  recognized  as  sovereign  and  inde- 
pendent states,  possessing  both  the  exclusive    right  to  their 
territory  and  the  exclusive  right  of  self  governm.ent  within 
that  territory.     That    the  various  proceedings  from   time  to 
time  had  by  the   congress  of  the  United    States,  under   the 
articles  of  their  confederation,  as  well  as  under  the  present 
constitution  of  the  United  States,  in  relation  to  the  subject  of 
the  Indian  nations,  confirm  the  same  view  of  the  subject ;  in 
evidence  of  which   these    complainants  refer   to  the  printed 
journals  of  their  proceedings,  and  pray  that  they  may  be  taken 
and  considered  as  part  of  this  bill.     These  complainants  also 
pray  leave  to  refer,  as  part  of  this  bill,  to  the  following  trea- 
ties between  the   United  States  and  the  Cherokee  nation,  as 


G  .  SUPREME   COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
published  with  the  Laws  of  the  United  States,  and  forming, 
according  to  the  constitution  of  the  United  States,  a  part  of 
the  supreme  law  of  the  land,  to  be  administered  by  this  hon- 
ourable court,  to  wit :  the  treaty  concluded  at  Hopewell,  on 
the  28th  of  November  1785,  between  the  commissioners  of 
the  United  States,  and  the  head  men  and  warriors  of  all  the 
Cherokees:  the  treaty  concluded  on  the  bank  of  the  Holston, 
on  the  22d  of  July  1791,  between  the  president  of  the  United 
States,  by  his  duly  authorised  commissioner  William  Blount, 
and  the  chiefs  and  warriors  of  the  Cherokee  nation  of  Indians, 
together  wit?i  the  additional  article  thereto  made  at  Philadel- 
phia,  on  the  17th  of  February  1792,  between  Henry  Knox,  the 
secretary  of  war,  acting  in  behalf  of  the  United  States,  and  the 
undersigned  chiefs  and  warriors  of  the  Cherokee  nation;  the 
treaty  between  the  United  States  of  America  and  the  Chero- 
kee nation  of  Indians,  at  Philadelphia,  on  the  26th  day  of 
June  1794;  the  treaty  between  the  same  parties  at  Tellico,  on 
the  2d  of  October  1798;  the  treaty  between  the  same  parties 
at  Tellico,  on  the  25th  of  October  1805;  the  treaty  between 
the  same  parties  at  Tellico,  on  the  24th  of  October  1804; 
another  treaty,  between  the  same  parties,  at  the  same  place, 
on  the  27th  of  October  1805;  the  treaty  between  the  same 
parties,  made  at  the  city  of  Washington,  on  the  7th  day  of 
January  1806;  together  with  the  proclamation  of  that  con- 
vention by  the  president  of  the  United  States,  and  the  eluci- 
dation of  that  convention  of  the  11th  of  September  1S07;  the 
treaty  between  the  United  States  and  the  Cherokee  nation  of 
Indians,  made  at  the  city  of  Washington,  on  the  22d  day  of 
March  1816;  another  convention  between  the  same  parties, 
at  the  same  place,  on  the  same  day;  a  treaty  between  the  same 
parties,  made  and  done  at  the  Chickasaw  Council  House,  on  the 
14th  of  September  1816;  another  treaty  between  the  same 
parties,  made  at  the  Cherokee  agency,  on  the  8th  day  of  July 
1817;  and  a  treaty  between  the  same  parties,  made  at  the  city 
of  Washington,  on  the  27th  day  of  February  1819:  all  which 
treaties  and  conventions  were  duly  ratified  and  confirmed  by 
the  senate  of  the  United  States,  and  became,  thenceforth,  and 
still  are,  a  part  of  the  supreme  law  of  this  land. 

That,  by  these  treaties,  the  Cherokee  nation  of  Indians  are 
acknowledged  and  treated  with  as  a  sovereign  and  independent 


JANUARY  TERM  1831.  7 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
state,  within  the  boundary  from  time  to  time  arranged  between 
them  and  the  United  States,  accordingly  as  that  boundary  was 
changed  by  successive  cessions  of  their  land  to  the  United 
States,  and  that  within  the  boundary  as  finally  adjusted  by  the 
treaty  of  1819  they  are  still  sovereign  and  independent,  with 
the  exclusive  right  of  governing  themselves  by  their  own 
laws,  usages  and  customs,  and  without  any  right  of  interfer- 
ence with  such  their  self  government,  on  the  part  of  any  one 
of  the  states  composing  the  confederacy  of  the  United  States. 
These  complainants  pray  leave  to  call  the  attention  of  this 
honourable  court  to  a  more  particular  inspection  of  these 
treaties,  for  the  purpose  of  verifying  the  truth  of  the  general 
principles  thus  deduced  from  them.  The  fact  that  the  Chero- 
kees  are  not  citizens  of  the  United  States,  nor  of  any  one  of 
those  states,  is  admitted  by  the  fact  of  treating  with  them  as  a 
separate  and  sovereign  nation;  and  theprovisionsof  those  trea- 
ties are  such  as  to  place  this  tacit  admission  beyond  the  reach 
of  controversy.  Thus  the  treaty  of  Hopewell  was  a  treaty  of 
peace,  made  to  put  an  end  to  a  long  and  bloody  war,  which 
had  existed  between  the  parties  to  the  treaty  ;  and  the  first 
and  second  articles  stipulate  «?^  exchange  of  prisoners,  pre- 
cisely in  the  style  of  two  equal  sovereigns,  treating  under 
such  circumstances;  for  example,  by  the  first  article  of  the 
treaty  of  Hopewell,  "  the  head  Tnen  and  warriors  of  all  the 
Cherokees  shall  restore  all  the  prisoners,  citizens  of  the  United 
States,  or  subjects  of  their  allies,  to  their  liberty."  The 
second  article  presents  a  corresponding  stipulation  by  the 
United  States;  thus  exhibiting  all  the  Cherokees  in  striking  con- 
tradistinction to  the  citizens  of  the  United  States  and  the  sub- 
jects of  their  allies,  and  this  feature  of  contradistinction,  these 
complainants  will  here  remark,  runs  through  every  provision 
of  this,  and  of  every  subsequent  treaty,  so  as  to  exclude  the 
possibility  of  the  supposition  that  the  Cherokees  were  re- 
garded as  citizens  of  the  United  States,  or  any  one  of  those 
states,  or  as  owing,  in  any  manner,  allegiance  to  their  laws. 
On  the  contrary,  both  the  language  of  the  treaties  and  their 
substantive  provisions,  have  neither  sense  nor  meaning,  except 
upon  the  admission  that  the  Cherokees  were  a  separate,  sove- 
reign nation,  with  full  capacity  to  treat  as  such,  and  to  bind 


S  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
both  themselves  and  the  United  States  by  the  terms  of  these 
treaties.  Again,  the  eighth  article  of  the  same  treaty  of 
Hopewell  contains  this  stipulation:  "  it  is  understood  that  the 
punishment  of  the  innocent,  under  the  idea  of  retaliation,  is 
unjust,  and  shall  not  be  practised  on  either  side,  except  when 
there  is  a  manifest  violation  of  this  treaty,  and  then  it  shall  be 
preceded  first,  by  a  demand  of  justice,  and  if  refused,  then 
hy  a  declaration  of  hostilities;  the  parties  thus  admitting 
themselves  to  be  on  an  entire  equality,  in  regard  to  that  deci- 
sive test  of  sovereignty,  the  right  of  declaring  war.  Again, 
the  sixth  article  of  the  same  treaty  contains  a  stipulation  on 
the  part  of  the  Cherokees  for  the  delivering  up  of  any  Indian 
or  other  person  residing  among  them,  or  xoho  shall  take 
refuge  in  their  nation;  who  shall  have  committed  robbery 
or  murder,  or  other  capital  crime  on  any  citizen  of  the 
United  States;  a  provision  wholly  idle  if  such  refugees  might 
be  reached  within  the  Indian  nation  of  the  Cherokees,  by  the 
laws  of  the  United  States  or  of  any  one  of  these  states.  By 
the  fourth  article  of  the  same  treaty,  the  boundary  between 
the  Cherokees  and  the  citizens  of  the  United  States  is  desig- 
nated; and  the  same  article  proceeds  to  stipulate,  that  if  any 
citizen  of  the  United  States  shall  attempt  to  settle  on  any  of 
the  lands  within  that  boundary,  he  shall  forfeit  the  protection 
of  the  United  States,  and  the  Indians  may  punish  him  or 
not,  as  they  please.  Without  detaining  your  honours  with 
a  farther  specification  of  the  provisions  of  that  treaty,  by  a 
detailed  reference  to  each  and  every  article,  as  admitting  their 
exclusive  sovereignty,  and  their  authority  to  give  the  law 
within  their  own  territorial  limits,  these  complainants  refer 
again  to  the  provisions  at  large,  both  of  that  and  of  all  the  other 
treaties  above  enumerated.  These  complainants  showfurther  to 
your  honours,  that  the  second  of  the  treaties  above  enumerated, 
that  of  Holston,  was  made  by  and  with  the  previous  advice 
and  consent  of  the  senate  of  the  United  States;  in  support  of 
which,  they  refer  to  the  message  of  the  president  Washing- 
ton to  that  body,  in  August  1790,  and  their  answer  thereto, 
as  extracted  from  the  journals  of  the  senate  of  the  United 
States;  a  copy  of  which  was  annexed  and  made  part  of  the 
bill.     This  treaty  of  Holston,  entered  into  by  the  United 


JANUARY  TERM  1831.  9 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
States,  after  the  adoption  of  the  present  constitution  of 
the  United  States,  and  under  the  double  solemnity  of  a  pre- 
vious consultation  with  the  senate,  and  their  subsequent  ratifi- 
cation of  the  treaty,  contains  the  recognition  of  every  feature 
of  the  separate  sovereignty  of  the  Cherokee  nation,  which  is 
to  be  found  in  the  treaty  of  Hopewell,  and  other  additional 
ones  of  a  character  equally  decisive;  to  all  which  these  com- 
plainants pray  the  special  reference  of  your  honours.  The 
eleventh  article,  particularly,  contains  a  distinct  admission, 
that  the  territory  of  the  Cherokee  nation  is  not  within  the 
jurisdiction  of  either  of  the  states  or  territorial  districts 
of  the  United  States.  And  by  the  seventh  article,  "  the 
United  States  solemnly  guaranty  to  the  Cherokee  nation  all 
their  lands  not  hereby  ceded." 

These  complainants  show  farther  unto  your  honours,  that 
the  United  States  of  America,  from  their  earliest  intercourse 
with  the  Cherokee  nation,  have  evinced  an  anxious  desire  to 
lead  them  to  a  greater  degree  of  civilization,  and  to  induce 
them  to  become  herdsinen  and  cultivators,  instead  of  remain- 
ing in  their  original  hunter  state.  Of  this  fact  the  fourteenth 
article  of  the  said  treaty  of  Holston  furnishes  evidence,  which 
will  be  found  to  be  followed  up  in  all  the  subsequent  treaties 
before  referred  to,  in  all  the  messages  of  the  president  of  the 
United  States  to  congress  touching  the  Indian  tribes,  and  in 
all  the  correspondence  of  the  executive  department  of  the 
United  States  with  the  agents,  from  time  to  time,  established 
under  the  authority  of  treaties  with  those  nations.  With  the 
Cherokee  nation  those  humane  and  generous  efforts  were  so 
far  successful,  that  many  of  them  had  already  commenced 
agricultural  pursuits,  when  in  the  year  1808  they  sent  a  dou- 
ble deputation  to  the  city  of  Washington;  that,  from  the  upper 
.  towns,  to  declare  to  the  president  of  the  United  States  their 
anxious  desire  to  engage  in  the  pursuits  of  agricultural  and 
civilized  life,  in  the  country  they  then  occupied,  and  to  make 
known  to  him  the  impracticability  of  inducing  the  nation  at 
large  to  do  this,  and  to  request  the  establishment  of  a  division 
line  between  the  upper  and  lower  towns;  and  the  deputies 
from  the  lower  towns  to  make  known  their  desire  to  continue 
the  hunter  life,  and  also  the  scarcity  of  game  where  they  then 
B 


10  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
lived,  and  under  these  circumstances,  their  wish  to  remove 
across  the  Mississippi  river,  on  some  vacant  lands  of  the 
United  States.  To  both  these  deputations,  the  president  gave 
a  favourable  answer:  declaring  that  those  who  chose  to  remain 
for  the  purpose  of  engaging  in  the  pursuits  of  agricultural 
and  civilized  life,  in  the  country  they  then  occupied,  might 
be  assured  of  the  patronage,  aid,  and  good  neighbourhood 
of  the  United  States;  and  providing  the  means,  also,  of  grati- 
fying those  who  wished  to  remove  to  the  west  of  the  Mississ- 
ippi, to  continue  the  hunter  state.  In  consequence  of  this 
arrangement,  a  part  of  the  Cherokee  nation  did  remove  to  the 
west  of  the  Mississippi,  while  the  far  larger  portion  of  them 
did  remain  to  engage  in  the  pursuits  of  agriculture  and  civil- 
ized life  in  the  country  they  then  occupied.  On  the  8th  of 
July  1817,  the  before  mentioned  treaty  at  the  Cherokee  agency 
was  madej  the  preamble  of  which  recites  the  promises  just 
stated  as  having  been  made  by  the  president  of  the  United 
States  in  1808,  1809,  and  declares  that  that  treaty  is  made /or 
the  purpose  of  carrying  into  full  effect  the  before  recited 
promises  with  good  faith;  and  in  full  reliance  on  this  good 
faith,  a  large  cession  of  their  lands  was  thereby  made  by  the 
Cherokee  nation.  For  the  same  purpose,  and  in  final  and  com- 
plete execution  of  that  purpose,  the  before  mentioned  treaty 
of  the  27th  of  February  1819  was  made  at  the  city  of  Wash- 
ington; reciting  in  the  preamble  thereto,  that  a  greater  part 
of  the  Cherokee  nation  had  expressed  an  earnest  desire  to 
remain  on  this  side  of  the  Mississippi,  and  were  desirous  to 
commence  those  measures  which  they  deem  necessary  to  the 
civilization  and  preservation  of  their  nation;  to  give  effect 
to  which  object,  without  delay,  that  treaty  was  declared  to  be 
made,  and  another  large  cession  of  their  lands  was,  thereby, 
made  by  them  to  the  United  States. 

By  reference  to  the  several  treaties  before  enumerated,  it 
will  be  seen  by  your  honours,  that  among  other  proofs  of  the 
earnestness  of  the  United  States  to  promote  civilization  among 
your  complainants,  a  fund  is  provided  for  the  establishment 
of  schools.  And  your  complainants  show  farther  unto  your 
honours,  that,  in  full  reliance  on  the  sincerity  and  good  faith 
of  the  United  States,  and  grateful  for  the  humanity  so  often 
and  so  zealously  expressed  in  their  behalf,  the  Cherokee  nation 


JANUARY  TERM  1831.  11 

[The  Cherokee  Nation  vs.  The  Stafe  of  Georgia.] 
have  made  great  progress  in  civilization  and  in  agriculture. 
They  have  established  a  constitution  and  form  of  government; 
the  leading  features  of  which  they  have  borrowed  from  that 
of  the  United  States;  dividing  their  government  into  three 
separate  departments,  legislative,  executive  and  judicial.  In 
conformity  with  this  constitution,  these  departments  have  all 
been  organized:  they  have  formed  a  code  of  laws,  civil  and 
criminal,  adapted  to  their  situation;  have  erected  courts  to 
expound  and  apply  those  laws,  and  organized  an  executive  to 
carry  them  into  effect.  They  have  established  schools  for  the 
education  of  their  children,  and  churches  in  which  the  Chris- 
tian religion  is  taught;  they  have  abandoned  the  hunter  state 
and  become  agriculturists,  mechanics,  and  herdsmen;  and, 
under  provocations  long  continued  and  hard  to  be  borne,  they 
have  observed,  with  fidelity,  all  their  engagements  by  treaty 
with  the  United  States. 

They  have  understood  that  some  of  their  white  brethren, 
citizens  of  the  United  States,  have  sometimes  indulged  in 
speculative  objections  to  their  title  to  their  lands;  on  the  ground 
that  they  are  mere  savages,  roving  over  the  surface  of  the  earth 
in  quest  of  game,  having  never  appropriated  the  soil  to  them- 
selves by  incorporating  their  own  labour  with  it,  and  turning 
it  to  the  purpose  for  which  the  God  of  nature  intended  it — of 
supporting  the  greatest  practical  amount  of  human  life.  Even 
if  this  hypothesis  of  fact  were  true,  how  such  an  objection 
could  stand  with  those  solemn  treaties  by  which  their  boun- 
daries have  been  designated,  and  their  lands  within  those 
boundaries  guarantied  to  them  by  the  United  States,  they  find 
themselves  utterly  unable  to  comprehend.  Nor  have  they  yet 
been  informed  how  their  white  brethren  have  ascertained  that 
this  earth  was  designed  only  for  the  purpose  of  agriculture, 
and  that  no  title  could  be  acquired  to  any  portion  of  it  in  any 
other  manner  than  by  actually  digging  into  its  bowels;  nor 
how  digging  into  one  part  of  it  can  give  a  title  to  bund 
and  thousands  of  miles,  at  a  distance  from  the  part  thi  •  '■ 
They  are  still  more  confounded  in  attempting  to  reconcile  this 
theory  of  a  title  derivable  only  from  cultivation,  with  the 
alleged  title  by  discovery  arising  simply  from  sailing  along 
the  coast,  at  several  miles  distance  from  the  shore,  without 
even  touching  the  land:  and  finally,  they  ore  equally  perplexed 


12  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  Slate  of  Georgia.] 
in  reconciling  this  theory  with  the  title  which  the  United 
States  themselves  assert  to  the  untouched  millions  of  acres 
which  lie  between  their  settlements  and  the  Pacific  ocean; 
over  which  their  people  have  never  even  chased  their  game, 
nor  seen  them  from  the  distant  mountain  tops.  But  whatever 
foundation  there  may.  be  for  this  theory,  so  unintelligible  to 
your  coinplainants,  and  so  entirely  inconsistent  with  the  title 
which  they  see  asserted  against  the  aborigines  of  this  country, 
it  is  no  longer  true  in  point  of  fact  with  regard  to  these  com- 
plainants; for  they  are  no  longer  savages  nor  heathens  in  the 
hunter  state.  Under  the  promised  '^palronage,  aid,  and 
good  neighbourhood''  of  the  United  States,  they  have  be- 
come civilized,  Christians,  and  agriculturists,  and  have  no 
more  land  than  is  sufficient  for  their  subsistence  and  that  of 
their  posterity,  and  this  land  they  hold  under  repeated,  solemn, 
and  still  subsisting  guarantees  by  treaty  with  the  United 
States.  They  do  not  mean  to  allege,  that  they  have  all  be- 
come perfectly  civilized,  nor  all  public  pi'ofessors  of  Chris- 
tianity, nor  all  agriculturists:  but  in  all  these  respects  they  are 
willing  that  a  comparison  shall  be  instituted  between  them 
and  their  white  brethren  around  them,  and  they  are  very  little 
apprehensive  of  suffering  by  such  comparison  when  instituted 
before  this  honourable  court.  If  practising  justice,  and  the 
doing  to  others  as  we  would  have  them  do  unto  us,  be  the  tests 
of  civilization  and  Christianity,  and  the  proportion  of  the  cul- 
tivators of  the  soil  to  the  whole  number  of  the  population  be 
the  test  of  the  agricultural  character  of  a  nation,  with  refer- 
ence to  the  theory  in  question,  they  apprehend  that  they  have 
at  least  as  little  reason  as  their  white  brethren  around  them  to 
shrink  from  such  tests. 

These  complainants  show  farther  unto  your  honours,  that, 
by  the  constitution  of  the  United  States  (to  which  they  pray 
leave  to  refer  as  part  of  this  bill),  it  is,  among  other  things,  pro- 
vided, that  all  treaties  made,  or  to  be  made,  under  the  authority 
of  the  United  States,  shall  compose  a  part  of  the  supreme  law 
of  the  land,  and  it  is  further  thereby  declared,  that  the  judges 
in  every  state  shall  be  bound  thereby,  any  thing  in  the  con- 
stitution or  laws  of  any  state  to  the  contrary  notwithstanding. 

That  by  the  same  constitution  it  is  further  declared,  that  no 
state  shall  pass  any  law  impairing  the  obligation  of  contracts; 


JANUARY  TERM  1831.  13 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
and  these  complainants  aver,  that  all  the  treaties  aforesaid  are 
contracts  of  the  highest  character,  and  of  the  most  solemn  ob- 
ligation. 

The  same  constitution  further  provides,  that  the  congress  of 
the  United  States  shall  have  power  to  regulate  commerce  with 
the  Indian  tribes;  a  power  which,  from  its  nature,  is  exclu- 
sive, and  consequently  forbids  all  interference  by  any  one  of 
the  states. 

These  complainants  further  show  unto  your  honours,  that, 
in  execution  of  this  latter  power,  the  congress  of  the  United 
States  have,  from  time  to  time,  passed  various  acts  for  the 
regulation  of  that  commerce,  and  among  others  the  act  of  1802, 
"to  regulate  trade  and  intercourse  with  the  Indian  tribes,  and 
to  preserve  peace  on  the  frontiers;"  to  all  of  which  these  com- 
plainants beg  leave  to  refer,  and  to  pray  that  they  also  may  be 
taken  as  part  of  this  bill.  The  great  object  of  these  laws  is  to 
consecrate  the  boundary  arranged  by  treaty  between  the 
Indians  and  the  citizens  of  the  United  States;  and  every  pro- 
vision is  marked  with  the  clearest  recognition  of  the  sove- 
reignty of  the  Indians,  and  their  exclusive  right  to  give  and  to 
execute  the  law  within  that  boundary. 

These  complainants  show  farther  unto  your  honours,  that, 
in  violation  of  these  treaties  of  the  constitution  of  the  United 
States,  and  of  the  act  of  congress  aforesaid,  the  state  of 
Georgia,  one  of  the  United  States  of  America,  at  a  session  of 
her  legislature,  held  in  December  in  the  year  1828,  passed  an 
act,  which  received  the  assent  of  the  governor  of  that  state  on 
the  20th  day  of  that  month  and  year,  entitled,  ''  an  act  to  add 
the  territory  lying  within  this  state  and  occupied  by  the  Chero- 
kee Indians,  to  the  counties  of  Carroll,  De  Kalb,  Gwinett,  Hall, 
and  Habersham,  and  to  extend  the  laws  of  this  state  over  the 
same,  and  for  other  purposes;"  a  copy  of  which  act,  authenti- 
cated under  the  seal  of  the  said  state,  these  defendants  here- 
with exhibit,  and  pray  that  it  may  be  taken  and  considered  as 
a  part  of  their  bill.  That  afterwards,  to  wit  in  the  year  1829, 
the  legislature  of  the  said  state  of  Georgia  passed  another  act, 
which  received  the  assent  of  the  governor  on  the  19th  Decem- 
ber of  that  year,  entitled,  "  an  act  to  add  the  territory  lying 
within  the  chartered  limits  of  Georgia,  now  in  the  occupancy 
of  the  Cherokee  Indians,  to   the  counties  of  Carroll,  De  Kalb, 


14  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
Gvvinett,  Hall,  and  Habersham,  and  to  extend  the  laws  of  this 
state  over  the  same,  and  to  annul  all  laws  and  ordinances  made 
by  the  Cherokee  nation  of  Indians,  and  to  provide  for  the 
compensation  of  officers  serving  legal  processes  in  said  territory, 
and  to  regulate  the  testimony  of  Indians,  and  to  repeal  the  ninth 
section  of  the  act  of  1820  on  this  subject;"  of  which  last  acta 
copy,  duly  authenticated,  is  also  herewith  exhibited,  and  these 
complainants  pray  that  it  may  be  taken  and  considered  as  a 
part  of  their  bill. 

That  by  these  laws  the  state  of  Georgia  professes  to  parcel 
out  the  territory,  which  belongs  exclusively  to  these  com- 
plainants, and  is  guarantied  to  them  by  the  aforesaid  treaties, 
among  the  several  counties  named  in  the  title  of  the  lands;  to 
extend  all  the  laws  of  Georgia,  both  civil  and  criminal,  over 
the  whole  of  the  said  territory;  to  abolish  all  the  Cherokee 
laws  and  ordinances  therein;  and  to  declare  that  in  all  cases  of 
indictment  and  civil  suits,  it  shall  not  be  lawful  for  the  defend- 
ant Cherokee  to  justify  under  any  of  these  laws;  and  the 
courts  of  the  state  are  forbidden  to  permit  those  laws  to  be 
given  in  evidence;  to  make  it  unlawful  for  the  Cherokees  to 
attempt  to  prevent  the  individuals  of  their  own  nation  from 
enrolling  for  emigration,  under  the  penalty  of  indictment  and 
punishment  before  the  state  courts  of  Georgia;  to  make  it 
unlawful  in  the  Cherokee  nation  to  prevent  the  individuals 
of  that  nation  from  selling  or  ceding  their  lands  to  the  United 
States,  for  the  use  of  the  state  of  Georgia  (whereas  your  com- 
plainants aver,  that,  by  the  Cherokee  laws,  there  is  no  such 
thing  as  individual  title  to  land  in  the  Cherokee  country;  but 
the  whole  of  these  lands,  according  to  their  laws,  belong  to 
the  entire  nation,  as  a  nation,  and  can  be  sold,  or  ceded  by 
them  only  in  their  national  capacity);  to  make  it  murder  in 
the  executive,  ministerial,  or  judicial  officers  of  the  Cherokee 
nation  to  inflict  sentence  of  death,  though  in  conformity  with 
their  own  laws,  and  declaring  all  those  officers,  so  concerned 
in  carrying  their  own  laws  into  effect,  principals,  and  sub- 
jecting them  all  to  indictment  therefor  and  death  by  hanging; 
extending  the  jurisdiction  of  the  justices  of  peace  of  the  state 
of  Georgia  into  the  Cherokee  territory,  and  authorising  the 
officers  who  shall  carry  their  process  for  service,  to  call  out 
the  militia  of  the  state  to   overcome   resistance;  and  finally. 


JANUARY  TERM  1831.  15 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
declaring  that  no  Indian,  or  descendant  of  any  Indian,  residing 
within  the  Cherokee  nation  of  Indians,  shall  be  deemed  a 
competent  witness  in  any  court  of  the  state  of  Georgia,  in 
which  a  white  person  may  be  a  party,  except  such  white  per- 
son resides  within  the  said  nation. 

These  complainants  aver  that  both  these  laws  of  the  state  of 
Georgia  are  null  and  void,  because  they  are  repugnant  to  the 
aforesaid  treaties,  which  are  yet  subsisting  and  in  full  force 
between  the  United  States  and  the  Cherokee  nation;  because 
they  are  also  repugnant  to  the  constitution  of  the  United 
States,  in  the  provisions  before  referred  to  as  contained  in  that 
instrument;  and  because  they  are  repugnant  to  a  law  of  the 
United  States,  to  wit  the  law  before  mentioned  as  having 
been  passed  in  the  year  1802,  entitled,  "an  act  to  regulate 
trade  and  intercourse  with  the  Indian  tribes,  and  to  preserve 
peace  on  the  frontiers." 

These  complainants  further  show  unto  your  honours,  that, 
by  the  aforesaid  treaty  of  Hopewell,  the  Cherokees  acknow- 
ledged themselves  to  be  under  the  protection  of  the  United 
States  of  America,  and  of  no  other  sovereign  whatever.  That 
a  number  of  white  men,  citizens  of  the  United  States,  having 
intruded  into  the  Indian  territory,  beyond  the  boundary  estab- 
lished by  that  treaty,  president  Washington,  in  his  message 
before  mentioned  to  the  senate  of  the  United  States,  advert- 
ing to  that  fact,  declared  it  to  be  his  determination  to  execute 
the  power  entrusted  to  him  by  the  constitution  of  the  United 
States,  to  carry  that  treaty  into  faithful  execution  by  the  re- 
moval of  the  white  intruders,  unless  a  new  boundary  should 
be  arranged  by  treaty,  excluding  from  the  Indian  territory 
those  intrusive  settlements;  thereby  avowing  his  opinion  that, 
as  the  president  of  the  United  States,  he  possessed  the  power, 
and  was  constrained  by  his  official  duty  to  enforce,  in  behalf 
of  the  Cherokees,  the  protection  secured  to  them  by  that 
treaty. 

These  complainants  show  farther  unto  your  honours,  that 
by  the  second  article  of  the  treaty  of  Holston,  before  referred 
to,  the  Cherokee  nation  again  acknowledged  themselves  to  be 
under  the  protection  of  the  United  States  of  America,  and  of 
no  other  sovereign  whatsoever;  and  stipulated  that  they  would 
not  hold  any  treaty  with  any  foreign  power,  individual  state, 


16  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
or  with  mdividuals  of  any  state;  a  stipulation  with  which 
thej  have  faithfully  complied  on  their  part,  and  that  protec- 
tion has  been,  in  the  main,  extended  to  them,  as  well  as  was 
perhaps  practicable,  down  to  the  year  1829. 

They  show  farther  unto  your  honours,  that  they  are  informed 
and  believe,  that,  in  the  year  1802,  the  state  of  Georgia  ceded 
to  the  United  States  a  large  body  of  lands  alleged  to  be  within 
her  chartered  limits,  upon  several  conditions,  one  of  which 
was,  that  the  United  States  would  extinguish,  for  the  use  of 
Georgia,  the  Indian  title  to  the  lands  within  her  remaining 
limits,  "as  soon  as  it  could  be  done  peaceably,  and  on  reasona- 
ble terms;"  the  state  of  Georgia  thus  admitting  that  the 
Indian  title  was  a  subsisting  title,  which  remained  to  be  extin- 
guished, and  that  it  could  be  properly  extinguished  only 
peaceably  and  on  reasonable  tenns,  by  the  United  States, 
This  stipulation  must  be  considered  as  referring  to  the  uniform 
practice  which  had  always  prevailed  in  extinguishing  that 
title,  and  to  be  construed  and  expounded  by  that  practice;  and 
that  uniform  practice  had  been  to  extinguish  the  Indian  title 
by  peaceable  treaties  held  with  the  Indian  nations  in  their 
national  character;  in  which  terms  were  offered,  accepted, 
rejected,  or  modified,  at  the  pleasure  of  those  nations,  nothing 
being  forced  upon  them.  That  the  Cherokee  nation  went  on 
amicably  to  meet  the  wishes  of  the  United  States  and  of  the 
state  of  Georgia,  by  ceding,  from  time  to  time,  as  much  of 
their  lands  as  they  could  spare,  until,  by  the  cession  of  1819, 
they  had  reduced  their  territory  into  as  small  a  compass  as 
their  own  convenience  would  bear;  and  they  then  accordingly 
resolved  to  cede  no  more.  That  the  state  of  Georgia;  although 
she  already  possesses  millions  of  acres  more  than  her  people 
can  cultivate,  becoming  impatient  for  the  lands  owned  by  your 
complainants,  and  forgetting  her  own  stipulation  with  the 
United  States  that  the  Indian  title  was  to  be  extinguished 
peaceably  and  on  reasonable  terms;  pressed  upon  the  United 
States  (as  your  complainants  are  informed  and  believe)  the 
obligation  of  extinguishing  the  title  at  once,  with  an  intima- 
tion that  she  expected  the  application  of  force  to  the  Indians, 
if  necessary  for  the  accomplishment  of  her  object,  and  with  a 
menace  that  if  the  United  States  withheld  it,  she  would  her- 
self apply  that  force  and  expel  your  complainants  from  their 


JANUARY  TERM  1831.  17 

[The  Cherokee  Nation  «s.  The  Slate  of  Georgia.] 
possessions.  In  the  course  of  that  correspondence  the  state  of 
Georgia  (as  your  complainants  are  informed  and  believe)  re- 
proached the  United  States  with  unfairness  in  those  m'easures 
which  had  been  so  humanely  adopted  to  civilize  your  com- 
plainants, and  to  turn  them  from  the  hunter  state  to  that  of  agri- 
culturists and  herdsmen,  under  a  regular  government  and  laws 
of  their  own;  which,  she  alleged,  had  had  a  tendency  to  attach 
them  to  the  soil,  and  to  disincline  them  to  cede  it  for  the  use 
of  Georgia;  and  although,  in  her  capacity  of  one  of  the  states 
of  the  United  States,  she  had  been  a  party  to  all  the  treaties 
which  had  those  measures  in  view,  and  had  reaped  the  fruits 
of  these  treaties,  by  the  large  cessions  which  she  had,  from 
tim.e  to  time,  received  of  the  Indian  lands;  and  although  she 
had  been  also  a  party  to  all  those  acts  of  congress  which  had 
looked  to  the  accomplishment  of  the  same  humane  and  benevo- 
lent objects,  from  the  time  of  the  adoption  of  the  present  con- 
stitution of  the  United  States  until  she  had  gained  the  last 
cession  under  the  treaty  of  1819;  she  now  aifected  to  treat 
those  measures;  consecrated  as  they  were  by  the  names  of  the 
best  patriots  of  the  United  States,  and  sanctioned  by  herself; 
as  a  tissue  of  hypocritical  pretences  of  benevolence  and  phi- 
lanthropy, which  had  no  other  object  in  view  than  to  disap- 
point her  own  just  hopes  of  engrossing  to  herself  all  the 
Indian  lands  within  her  remaining  limits.  These  complainants 
have  understood  and  believe,  that  presidents  Monroe  and 
Adams,  in  succession,  understanding  the  articles  of  cession 
and  agreement  between  the  state  of  Georgia  and  the  United 
States,  in  the  year  1802,  as  binding  the  United  States  to 
extinguish  the  Indian  title  so  soon  only  as  it  could  be  done 
peaceably  znd.  on  reasonable  terms;  refused,  themselves,  to 
apply  force  to  these  complainants,  or  to  permit  it  to  be  applied 
by  the  state  of  Georgia,  to  drive  them  from  their  possession; 
but,  on  the  contrary,  avowed  their  determination  to  protect 
these  complainants  by  force  if  necessary,  and  to  fulfil  the 
guarantee  given  to  them  by  the  aforesaid  treaties. 

That  the  state  of  Georgia,  disappointed  in  this  her  unjust 
design  upon  these  complainants  and  their  territory,  resorted, 
in  the  next  place,  to  the  scheme  of  legislation  before  set 
forth,  expecting,  as  your  complainants  believe,  to  accomplish, 
by  the  moral  force  of  her  laws,  that  expulsion  of  them  from 
C 


18  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
their  territory  which  she  had  been  prevented  by  the  just  and 
honourable  interference  of  the  United  States  from  effecting, 
or  attempting  to  effect  at  the  point  of  the  bayonet.  Your 
complainants,  unwilling  to  resist  by  force  of  arms,  if  it 
could  be  avoided,  the  unjust  and  unlawful  pretension  of  the 
state  of  Georgia  to  parcel  out  their  territory  among  her  neigh- 
bouring counties,  and  to  extend  her  laws  by  compulsion  over 
them,  have  applied  to  the  present  chief  magistrate  of  the 
United  States  to  make  good  the  protection  and  guarantee 
pledged  to  them  by  treaty  with  the  United  States;  but,  to  their 
great  surprise  and  regret,  have  received  for  answer  from  that 
chief  magistrate,  that  the  president  of  the  United  States  has  no 
power  to  protect  them  against  the  laws  of  Georgia. 

Your  complainants  beg  leave  to  show  farther  unto  5'cur  hon- 
ours, that,  at  the  last  session  of  the  congress  of  the  United 
States,  an  act  was  passed,  entitled,  "an  act  to  provide  for  an 
exchange  of  lands  with  the  Indians  residing  in  any  of  the  states 
or  territories,  and  for  their  removal  west  of  the  river  Missis- 
sippi." By  this  act  the  president  of  the  United  States  is 
authorised  to  cause  so  much  of  any  territory  belonging  to  the 
United  States,  west  of  the  river  Mississippi,  not  included  in 
any  state  or  organized  territory,  and  to  which  the  Indian  title 
has  been  extinguished,  as  he  may  judge  necessary,  to  be  divided 
into  a  suitable  number  of  districts,  for  the  reception  of  such 
tribes  or  nations  of  Indians  as  may  choose  to  exchange  the 
lands  where  they  now^reside,  and  remove  there;  but  there  is  a 
proviso  annexed  to  this  act,  which  declares  that  nothing  therein 
contained  shall  be  construed  as  authorising  or  directing  the 
violation  of  any  existing  treaty  between  the  United  States  and 
any  of  the  Indian  tribes. 

Under  this  act  overtures  have  been  made  to  your  complain- 
ants to  give  them  in  exchange  for  their  lands,  others  to  the 
west  of  the  Mississippi.  These  overtures,  as  it  was  their 
right  to  do,  they  have  declined.  They  prefer  to  remain  on 
their  present  lands,  and  to  insist  on  their  rights  under  their 
various  treaties  with  the  United  States. 

As  a  sovereign  and  independent  state,  it  would  be  enough 
for  them  to  say,  that  they  do  not  choose  to  make  the  proposed 
exchange,  without  assigning  any  other  reason  therefor — than 
their  non-pleasure.     But  as  this  offer  of  exchange  has  been 


JANUARY  TERM  1831.  19 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

field  up  before  the  world  as  an  evidence  of  great  humanity 
"towards  these  complainants,  and  as  the  happiest  means  that 
•could  be  devised  to  save  them  from  that  extinction,  which  it 
is  supposed  that  Indian  tribes  are  fated  to  experience,  from 
the  approach  and  "good  neighbourhood"  of  white  population; 
and  as  your  complainants  are  not  disposed  to  be  considered, 
either  as  so  stupid  as  to  be  blind  to  their  own  best  interests, 
or  so  contumacious  as  to  resist,  through  mere  obstinacy,  the 
desire  so  strongly  expressed  by  their  brethren  of  Georgia,  for 
their  expulsion;  they  beg  leave  to  state,  in  a  few  words,  the 
motives  that  have  induced  them  to  decline  this  offer  of  ex- 
change. 

In  the  first  place,  the  territory  which  they  now  inhabit  is 
well  known  to  them,  and  has  been  found  well  adapted  to  all 
their  wants.  It  has  been  opened,  improved,  settled,  built  upon 
and  placed  in  a  condition  for  agriculture,  which  they  are  "now 
prosperously  carrying  on.  It  is  well  supplied  with  wood  and 
water,  enjoys  a  salubrious  climate,  and  every  convenience  of 
commerce  and  intercourse  suited  to  a  civilized  people,  com- 
posed of  farmers,  planters,  mechanics  and  herdsmen.  The 
ports  of  the  United  States  are  all  within  the  reach  of  those  ex- 
changes which  their  pursuits  make  necessary  for  their  pros- 
perity. They  have  schools  established  for  the  education  of 
their  children,  and  the  means  of  furnishing  them  with  in- 
structors from  among  the  citizens  of  the  United  States:  they 
have  places  of  religious  worship  established,  in  which  the 
Christian  religion  is  peaceably  taught  by  missionaries  and  pas- 
tors, easily  supplied  from  the  United  States,  and  the  word  of 
God  is  prospering  among  them;  they  have  learned  to  relish  the 
manners  and  pursuits  of  civilized  life;  and,  if  their  treaties  with 
the  United  States  shall  be  faithfully  executed,  they  have  con- 
tinually brightening  prospects  of  becoming,  speedily,  as  civil- 
ized, as  enlightened,  and  as  Christian  as  the  best  portion  of 
their  white  brethren.  This  country,  too,  so  fraught  with 
every  convenience  and  advantage  to  them;  and  so  endeared  to 
them  by  the  great  and  multifarious  benefits  which  they  have  al- 
ready received  and  are  still  receiving  from  it;  is  consecrated 
in  their  affections  from  having  been,  immemorially,  the  pro- 
perty and  residence  of  their  ancestors,  and  from  containing, 
now,  the  graves  of  their  fathers,  relatives  and  friends.     Such 


20  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
are  the  grounds  of  their  attachment  to  this  country,  and  of 
their  unwillingness  to  relinquish  it. 

On  the  other  hand,  they  know  little  of  the  country  offered 
to  them  in  exchange;  but  the  little  they  do  know  of  it  con- 
vinces them,  that  instead  of  beingthe  paradise  which  it  has  some- 
times been  described  to  be,  it  will  become,  if  they  accept  it, 
the  grave  not  only  of  their  civilization  and  Christianity, 
but  of  their  entire  nation  itself.  In  the  first  place,  they  are 
by  no  means  satisfied  that  the  Indian  title  to  it  has  been  extin- 
guished. But  let  it  be  admitted  that  it  is  so,  those  who  have 
visited  that  country  represent  it  as  being  for  the  most  part  bar- 
ren; there  being  but,  comparatively,  a  small  portion  of  it  fit  for 
agriculture.  It  is  represented,  and  they  believe  it  to  be  des- 
titute, in  the  far  greater  part,  both  of  wood  and  water;  and 
therefore  wholly  unfit  for  a  settlement  of  planters,  farmers, 
and  herdsmen.  It  is,  also,  said  to  be  sickly.  It  is  far  re- 
moved from  all  intercourse  with  the  ports  and  markets  of  the 
United  States.  And  these  complainants,  if  they  could  be 
tempted  to  remove,  would  have  all  their  labours  to  commence, 
anew,  in  that  distant  wilderness,  without  any  hope  of  remu- 
neration. But  the  worst  feature  of  the  country  is  yet  to  come. 
It  is  surrounded  and  infested  with  fierce  and  powerful  nations 
of  Indians,  in  the  wildest  state  of  savage  barbarity,  who  claim 
that  country  as  their  own,  and  wage  a  war  of  extermination 
on  all  the  new  tribes  who  enter  it,  and  whom  they  consider 
as  intruders.  In  evidence  of  this  fact,  these  complainants  beg 
leave  to  state,  that  their  Cherokee  brethren,  who  emigrated 
to  the  west  of  the  Mississippi,  under  the  patronage  and  sanc- 
tion of  the  President,  in  the  years  1808,  1809,  and,  subse- 
quently, under  the  treaty  of  1817  before  mentioned,  were 
authorized,  in  the  first  place,  to  settle  on  the  river  Arkansas, 
in  the  territory  of  the  same  name,  where  they  were  assured, 
by  the  fifth  article  of  the  treaty  last  mentioned,  that  they 
should  be  entitled  to  all  the  immunities  and  privileges  of  all 
the  treaties  which  had  theretofore  been  made  with  their  nation. 
But  the  white  population  again  growing  up  to  them,  they 
were  required  to  remove  again.  This  second  removal  was  ef- 
fected by  the  treaty,  made  at  Washington  on  the  6th  of  May 
1828,  between  the  United  States  and  the  Cherokees  west  of 
the  Mississippi,  to  which  these  complainants  refer,  and  pray 


JANUARY  TERM  1831.  21 

(The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
that  it  may  be  taken  as  part  of  this  their  bill.  The  object  of 
this  treaty,  as  is  alleged  in  the  preamble,  is  to  provide  for  those 
Indians  ^^ a,  permanent  home,  and  which  shall,  under  the 
most  solemn  guarantee  of  the  United  States,  be,  and  re- 
m,ain,  theirs  for  ever."  The  second  article  of  that  treaty 
runs  thus:  ^'the  United  States  agree  to  possess  the  Cherokees, 
and  to  guaranty  it  to  them  for  ever,  and  that  guarantee  is  here- 
by solemnly  pledged,  of  seven  millions  of  acres  of  land,  to  be 
bounded  as  follows."  The  boundaries  are  then  given  by  that 
article.  By  the  third  article,  the  United  States  stipulate  to 
remove  all  white  intruders  and  others,  and  to  keep  them  off, 
"so  that  no  obstacle  arising  out  of  a  white  population,  or  a 
population  of  any  other  sort,  shall  exist  to  annoy  the  Chero- 
kees." On  the  faith  of  these  stipulations,  their  Cherokee 
brethren  removed  to  their  new  and  permanent  home,  where, 
in  the  language  of  the  eighth  article  of  the  treaty,  they  were  ''  to 
enjoy  the  repose  and  blessings  of  such  a  state,  in  the  future:" 
and  the  consequence  has  been,  as  your  complainants  are  in- 
formed and  believe,  that  they  have  been  delivered  up  to  the 
tomahawks  of  the  Osages,  Sioux  and  other  savage  tribes,  with 
whom  they  are  engaged  in  constant  scenes  of  killing  and  scalp- 
ing; and  have  to  wage  a  war  of  extermination  with  more  pow- 
erful tribes,  before  whom  those  complainants  have  no  hope  but 
that  they  must  ultimately  fall.  Such  is  the  region  of  country  to 
which  these  complainants  have  been  invited;  and  such  "the 
repose  and  blessings"  which  they  have  to  anticipate  from 
such  an  exchange.  The  only  consequences  which  they  could 
anticipate  from  it  as  inevitable,  would  be,  first  their  relapse 
into  all  the  habits  of  savage  life  in  their  own  defence;  and, 
finally  and  speedily,  the  dissolution  and  extinguishment  of 
their  entire  nation. 

With  these  views  of  the  subject,  they  have  decidedly  re- 
jected the  offer  of  exchange,  as  they  had  a  right  to  do;  and  as 
they  had,  at  one  time,  flattered  themselves  that  the  laws  of 
Georgia  were  merely  held  over  them  in  terror,  with  the  view 
of  constraining  thena  to  accept  that  exchange;  they  had  hoped 
that  so  soon  as  their  firm  and  final  resolution  to  reject  it  was 
made  known,  the  state  of  Georgia  would  suffer  those  laws  to 
fall  as  a  dead  letter,  without  any  farther  attempt  to  enforce 
them  in  practice.     But  in  this  hope   they  have   been   disap- 


22  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
pointed.  In  the  face,  and  in  defiance  of  all  the  treaties  that 
have  been  referred  to,  and  in  equal  defiance  of  the  constitu- 
tion of  the  United  States,  and  of  the  authority  of  the  con- 
gress of  the  United  States,  as  expressed  in  the  before  men- 
tioned act  of  1802,  the  territory  of  the  complainants,  conse- 
crated by  so  many  sanctions,  has  been  violated,  and  the  afore- 
said laws  of  Georgia  of  1828  and  1829  have  been  let  loose 
upon  them  in  all  their  terrors;  and  that  state  has  declared  its 
determination  to  continue  to  enforce  them  upon  these  com- 
plainants and  upon  their  territory,  so  long  as  these  complain- 
ants shall  continue  to  occupy  that  territory. 

But  while  these  laws  are  enforced  in  a  manner  the  most 
harassing  and  vexatious  to  your  complainants,  the  design 
seems  to  have  been  deliberately  formed  to  carry  no  one  of 
these  cases  to  final  decision  in  the  state  courts,  with  the  view, 
as  your  complainants  believe  and  therefore  allege,  to  prevent 
any  one  of  the  Cherokee  defendants  from  carrying  those 
cases  to  the  supreme  court  of  the  United  States,  by  writ  of 
error  for  review,  under  the  twenty -fifth  section  of  the  act  of 
congress  of  the  United  States,  passed  in  the  year  1789,  and 
entitled  "  an  act  to  establish  the  judicial  courts  of  the  United 
States." 

The  constituted  authorities  of  the  state  of  Georgia  seem 
to  be  under  the  impression  that  your  complainants  can 
have  no  access  to  the  jurisdiction  of  this  honourable  court, 
but  by  writ  of  error  from  the  supreme  court  of  the  United 
States,  to  the  final  decision  of  the  highest  court  of  the  state  of 
Georgia,  under  the  aforesaid  section  of  the  judiciary  act  of 
the  United  States.  The  plan  adopted,  therefore,  to  deprive 
these  complainants  of  the  benefit  of  this  jurisdiction,  seems  to 
be,  and  these  complainants  so  believe  and  charge  it  to  be, 
to  harass  them  by  the  constant  institution  of  judicial  proceed- 
ings in  the  state  courts,  without  carrying  any  one  of  them  to 
final  adjudication.  In  proof  of  the  fact,  that  the  design  has 
been  formed  to  deprive  these  complainants  of  the  benefit  of 
the  jurisdiction  of  this  honourable  court,  they  refer  to  a  charge 
delivered    on   the  day  of  last,  to  the 

grand  jury  of  county,  in  the  state  of  Georgia,  by  the 

honourable  Augustus  S.  Clayton,  the  judge  of  the  western  dis- 
trict of  the  state  of  Georgia;  and  to  a  message  of  his  excel- 


JANUARY  TERM  1831.  23 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

lency  George  R.  Gilmer,  the  governor  of  the  state  of  Georgia, 
delivered  to  the  legislature  of  that  state,  on  the  day 

of  last  past,  and  which  your  complainants  pray  may 

be  taken  and  considered  as  part  of  this  bill. 

In  illustration  of  the  unjust,  illegal,  and  oppressive  manner 
in  which  the  said  laws  of  Georgia  are  enforced  upon  them; 
and,  at  the  same  time,  in  illustration  of  the  mode  adopted  to 
deprive  these  complainants  and  their  people  of  the  benefit  of 
a  writ  of  error  to  the  final  decision  of  the  highest  court  of 
the  state  of  Georgia,  under  the  twenty-fifth  section  of  the 
judiciary  act  aforesaid,  these  complainants  beg  leave  to  lay  be- 
fore your  honours  the  following  cases,  which  have  actually 
occurred. 

In  the  autumn  of  the  year  1829,  one  Jesse  Stanal,  a  white 
man,  entered  the  Cherokee  territory  and  stole  a  horse,  the 
property  of  one  of  the  Cherokee  people;  he  was  arrested 
within  the  Cherokee  territory,  tried  for  the  offence  before  a 
regularly  constituted  court  of  the  Cherokee  nation,  found 
guilty  by  the  jury,  and,  in  strict  conformity  with  the  Cherokee 
laws,  was  sentenced  by  the  court  to  be  whipped;  which  sen- 
tence was  carried  into  effect.  For  this  act,  done  within  their 
own  territory  according  to  their  laws,  the  Cherokee  judge  and 
jury  were  indicted  by  the  grand  jury  of  Hall  county,  in  the 
state  of  Georgia,  at  the  March  term  last  of  that  court,  for 
trespass,  battery,  and  false  imprisonment,  alleged  to  have  been 
committed  on  the  said  Jesse  Stanal,  contrary  to  the  laws  of  the 
state  of  Georgia,  and  the  good  order,  peace,  and  dignity 
thereof.  On  this  indictment  a  w^arrant  was  issued  by  judge 
Clayton,  the  judge  of  the  court  of  Hall  county,  against  John 
Saunders,  the  Cherokee  judge,  and  the  Cherokee  jury  who  tried 
the  cause;  under  which  warrant  the  Georgia  sheriff  of  Hall 
county  entered  the  Cherokee  territory,  and  there  arrested 
the  aforesaid  John  Saunders,  the  Cherokee  judge,  and  George 
Saunders,  one  of  the  jury,  and  transported  them  a  distance  of 
seventy  or  eighty  miles  to  the  jail  of  Hall  county,  to  which  they 
were  committed,  to  await  their  trial  under  that  indictment. 
The  counsel  retained  by  them  filed  pleas  to  the  jurisdiction  of 
the  court,  setting  forth  the  facts  of  the  case,  and  relying  upon  the 
aforesaid  treaties,  and  intercourse  law  of  congress.  The  pleas 
were  overruled,  and  the  prisoners  tried  and  found  guilty  by 
the  jury;  whereupon  errors  in  arrest  of  judgment  were  filed 


24  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
by  the  prisoners'  counsel,  and  there  the  prosecution  stopped  j 
the  judge  having  not,  to  this  day,  passed  judgment  on  the 
errors  in  arrest,  and  the  prisoners  having  been  admitted  to 
bail.  A  copy  of  the  record,  as  perfect  as  these  complainants 
have  been  able  to  procure,  they; pray  may  be  taken  as  part  of 
this  bill. 

In  another  case,  a  white  man,  by  the  name  of  Ambrose 
Harmage,  entered  the  Cherokee  territory  some  years  ago,  in 
indigent  circumstances,  took  the  protection  of  its  government, 
married  a  Cherokee  woman,  and,  under  the  fostering  care  of 
the  laws  of  that  nation,  acquired  property  and  a  large  family, 
whose  interests  are  identified  with  those  of  the  nation.  This 
man  having  entered  into  a  mercantile  partnership  with  two 
Cherokee  men,  named  Alexander  M'Coy  and  Leonard  Hicks, 
fell  out  with  them  in  a  short  time,  and  their  controversy  was, 
in  due  form,  submitted  to  the  proper  tribunal  of  the  Cherokee 
country,  and  decided  against  Harinage.  After  this  he  filed  a 
bill  in  the  superior  court  of  Gwinett  county,  in  Georgia,  sitting 
in  chancery,  of  which  the  before  named  Augustin  S.  Clayton 
was  judge,  in  which  bill,  among  other  things,  he  prayed  for  a 
writ  of  ne  exeaij  against  the  said  M'Coy  and  Hicks.  The 
bill,  with  its  annexed  affidavit,  was  presented  to  judge  Clay- 
ton, who  thereupon  awarded  the  ne  exeat,  as  prayed.  This 
writ  was  served  by  the  deputy  sheriff  of  Gwinett  county,  on 
Alexander  M'Coy,  a  native  Cherokee,  at  his  dwelling  house, 
in  New  Echota,  a  town  of  the  Cherokee  country,  on  the  20th 
day  of  August  last,  and,  under  a  guard  of  three  men,  he  was 
carried  about  eighty  iniles  to  the  common  jail  of  Gwinett 
count)',  where  he  was  kept  in  close  confinement  for  ten  days. 
He  was  then  taken  out  under  a  writ  of  habeas  corpus,  and 
allowed  the  prison  bounds  until  the  sitting  of  the  superior 
court  of  Gwinett  county  on  the  second  Monday  of  Septem- 
ber, was  then  brought  up  for  trial  before  his  honour,  judge 
Clayton,  and  discharged  on  the  ground  that  the  affidavit  of  the 
plaintiff  was  not  sufficient  to  have  warranted  the  issuing  of  such 
a  writ.  Your  complainants  exhibit  as  part  of  this  bill,  the 
copy  of  the  original  process  under  which  M'Coy  was  arrested, 
together  with  his  affidavit. 

The  same  deputy  sheriff  who  arrested  M'Coy,  as  aforesaid, 
at  the  same  time  and  place,  arrested  an  elderly  Cherokee  wo- 
man, a  married  woman,  under  process  of  the  state  of  Geor- 


JANUARY  TERM  1831.  25 

[The  Cherokee  Nation  vs.  The  Stale  of  Georgia.] 

gia,  in  a  plea  of  debt  at  the  instance  of  the  same  Ambrose 
Harmage,  and  bore  her  off  captive,  from  her  husband  and 
children,  for  Lawrenceville,  in  Georgia,  a  distance  of  eighty 
or  ninety  miles;  but  after  having  been  carried  about  fifteen 
miles,  she  gave  bail,  and  was  permitted  to  return  home. 

In  another  case,  a  Cherokee  man,  named  Corn  Tassel,  was 
arrested  in  the  Cherokee  territory,  by  process  from  the  state 
of  Georgia,  on  a  charge  of  murder  alleged  to  have  been  com- 
mitted by  him  on  another  Cherokee,  within  the  Cherokee 
territory;  having  been  taken  to  the  prison  of  Hall  county, 
your  complainants  are  informed  and  believe  that  he  has  de- 
manded his  trial  ;  but  that  the  said  judge  Clayton  refused  to 
try  hirp,  and  has  remanded  him  to  prison;  for  farther  delibe- 
ration. 

In  another  case,  a  bill  in  chancery  was  filed,  in  the  same 
superior  court  of  Hall  county,  in  July  last,  in  the  name  of 
George  R.  Gilmer,  governor  of  the  state  of  Georgia,  against 
sundry  Cherokees,  praying  for  an  injunction  to  restrain  them 
from  digging  the  gold  mines  within  their  own  territory,  which, 
by  the  laws  of  that  territory,  they  were  authorised  to  do.  In 
this  bill,  a  title  is  asserted  for  Georgia  to  the  whole  of  the 
Cherokee  territory,  as  belonging  to  the  ungranted  and  un- 
surveyed  lands  of  the  state  of  Georgia.  The  Cherokee  mines 
are  consequently  claim.ed  as  part  of  those  lands;  and  the  bill 
being  sworn  to  before  the  same  judge  Clayton,  he  awarded  an 
injunction  against  the  parties  named  in  the  bill  as  defendants, 
they  being  Cherokee  citizens,  enjoining  and  commanding  them 
to  desist  from  working  those  mines,  under  the  penalty  of  twenty 
thousand  dollars;  and  they  were  at  the  same  time  summoned 
to  answer  the  bill  thus  filed  against  them  in  Hall  county. 
Under  the  authority  of  this  injunction,  the  sheriff  of  Hall 
county,  supported  by  a  colonel,  a  captain,  and  thirty  or  forty 
militia  of  the  state  of  Georgia,  entered  the  Cherokee  territory, 
came  to  the  gold  mines,  and  arrested  a  number  of  the  Chero- 
kees, who  were  there  engaged  in  digging  gold ;  the  persons  thus 
arrested  were,  at  first,  rescued  by  the  United  States  troops, 
and  the  sheriff  and  his  party  themselves  made  prisoners  by 
those  troops:  but  after  conducting  them  fifteen  or  sixteen 
miles,  a  council  of  examination  was  held,  and  an  exhibition  of 
their  respective  authorities  made,  w^hich  resulted  in  the  release- 
D 


26  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
ment  of  the  sheriff  and  his  party,  and  a  declaration  by  the 
commanding  officer  of  the  United  States  troops,  that  no  farther 
protection  could  be  extended  to  the  Cherokees  at  the  gold 
mines,  as  that  officer  could  not  interfere  with  the  laws  of 
Georgia.  The  Cherokees,  notwithstanding,  continued  their 
researches  for  gold,  as  they  had  a  right  to  do,  and  were  again 
visited  by  the  sheriff  and  Georgia  militia,  who  ordered  them 
to  desist  from  taking  the  gold  of  Georgia,  under  the  penalty 
of  being  committed  to  jail.  Some  of  the  Cherokees  replied, 
that  they  were  peaceably  pursuing  this  business  on  their  own 
soil,  and  were  unconscious  of  having  committed  any  trespass 
on  the  rights  of  Georgia;  and  if  it  was  supposed  by  others 
that  they  had,  they  were  willing  to  abide  the  consequences, 
even  if  they  were  to  go  to  jail;  that  it  was  unnecessary  to  raise 
the  militia  of  Georgia  to  take  them,  as  the  sheriff  alone  could 
do  it,  if  he  thought  proper  to  arrest  them.  In  place  of  arrest- 
ing them,  however,  the  militia  destroyed  some  of  the  ma- 
chinery of  the  Cherokees  for  gleaning  gold,  committed  some 
other  trespasses,  with  their  fire-arms,  on  the  property  of  a 
Cherokee  woman,  and,  with  loud  imprecations  against  "  the 
poor  devils"  (the  Cherokees),  retired  for  that  time.  On 
the  9th  day  of  August  following,  however,  the  sheriff  of 
Hall  county  again  appeared  at  the  Chestatee  gold  mines,  in 
the  Cherokee  territory,  with  a  guard  of  four  men,  under  pro- 
cess of  the  state  of  Georgia,  and  there  arrested  three  Cherokees, 
who  were  peaceably  and  lawfully  engaged  in  digging  for  gold 
in  those  mines,  the  property  of  their  own  nation;  the  charge 
being  that  these  Cherokees  had  disobeyed  judge  Clayton's 
injunction  in  continuing  to  work  at  those  mines.  Under  this 
arrest,  these  three  Cherokees,  to  wit  Elijah  Hicks,  Benjamin 
F.  Thompson  and  Johnson  Rogers,  were  taken,  as  state  pri- 
soners of  Georgia,  under  an  armed  guard,  were  forcibly  carried 
to'  the  court  house  of  Clarke  county,  in  the  state  of  Georgia,  a 
distance  of  about  seventy  miles,  before  the  aforesaid  judge  of 
the  state  of  Georgia,  Augustin  S.  Clayton;  were,  then  and 
there,  sentenced  by  him  to  pay  ninety -three  dollars  cost,  and 
to  stand  committed  to  prison,  till  paid;  and  were  farther 
required,  each,  to  give  a  bond,  in  the  penalty  of  one  thousand 
dollars,  for  their  personal  appearance  at  the  next  superior  court 
of  Hall  county,  in  Georgia,  on  the  third  Monday  of  Septem- 


JANUARY  TERM  1831.  27 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
ber  then  next  ensuing,  to  answer  to  the  charge  of  having 
violated  that  injunction,  and,  in  the  mean  time,  strictly  to  obey 
the  same.  The  said  Cherokees  were  kept  in  custody  by  the 
aforesaid  sheriff  and  his  guard,  on  that  arrest,  for  five  days. 
They  paid  the  cost,  and  gave  the  bond  ordered  by  judge 
Clayton,  and  did  appear  at  the  superior  court  of  Hall  county, 
on  the  third  Monday  in  September,  where  they  were  dis- 
charged by  his  honour,  judge  Clayton,  on  the  ground  that 
the  governor  of  Georgia  could  not  be  prosecutor  in  the 
case:  but  the  costs  which  they  had  been  required  to  pay  were 
not  refunded  to  them;  nor  did  they  receive  any  compensa- 
tion or  even  apology  for  the  lawless  outrage  which  had  been 
committed  on  their  persons.  In  confirmation  of  the  facts 
herein  set  forth  in  relation  to  this  case,  these  complainants 
annex,  as  part  of  their  bill,  the  copy  of  the  bill,  injunc- 
tion and  subpoena  in  the  case  of  George  R.  Gilmer,  governor 
of  Georgia,  against  David  England  and  others,  together  with 
the  afiidavits  of  Elijah  Hicks  and  John  Martin. 

Numerous  other  instances  might  be  stated  of  the  harassing 
and  vexatious  manner  in  which  the  state  of  Georgia  is  carrying 
into  effect  her  aforesaid  unconstitutional  laws  against  the  persons 
and  property  of  the  Cherokee  people,  without  regard  to  sex 
or  age.  But  these  cases  will  suffice  to  show  that  the  deter- 
mination is  formed  by  the  state  of  Georgia  to  carry  them  into 
full  effect :  and  indeed  this  determination  was  solemnly 
announced  by  the  governor  of  Georgia,  by  two  proclamations 
issued  by  him  in   the  month  of  last,  of  which  copies 

are  also  hereto  annexed,  and  these  complainants  pray  that  they 
may  be  taken  and  considered  as  part  of  this  their  bill. 

These  complainants  had,  at  one  time,  flattered  themselves, 
that  if  the  state  of  Georgia  should  persist  in  enforcing  these 
unconstitutional  laws  upon  them,  they  would  have  been  pro- 
tected against  such  an  attempt  by  the  troops  of  the  United 
States  stationed  in  that  quarter.  But  shortly  after  the  arrest 
of  the  Cherokees  at  their  gold  mines,  as  before  stated,  a  writ- 
ten notice  was  sent  by  the  commanding  officer  of  the  troops 
to  John  Ross,  the  principal  chief  of  the  Cherokee  nation, 
apprising  him  that  these  troops,  so  far  from  protecting  the 
Cherokees,  would  co-operate  with  the  civil  officers  of  Georgia 


28  SUPREiME  COURT. 

[The  Cherokee  Nation  TS.  The  State  of  Georgia.] 
in  enforcing  their  laws  upon  them  ;  a  copy  of  which  notice  is 
also  annexed  as  part  of  this  bill. 

Under  these  circumstances  your  honours  cannot  but  see  that, 
unless  you  shall  interpose  for  their  protection,  these  complain- 
ants have  before  them  no  alternatives  but  these:  either  to  sur- 
render their  lands  in  exchange  for  others  in  the  western  wilds  of 
this  continent,  which  would  be  to  seal,  at  once,  the  doom  of 
their  civilization,  Christianity,  and  national  existence;  or  to  sur- 
render their  national  sovereignty,  their  property,  rights  and  lib- 
erties, guarantied  as  these  now  are  by  so  many  treaties,  to  the 
rapacity  and  injustice  of  the  state  of  Georgia;  or  to  arm  them- 
selves in  defence  of  these  sacred  rights,  and  fall,  sword  in  hand, 
on  the  graves  of  their  fathers.  How  far  either  of  these  catas- 
trophes would  redound  to  the  honour  and  good  faith  of  the 
United  States,  these  complainants  willingly  submit  to  the  arbi- 
trament of  this  enlightened  and  honourable  court.  That  these 
proceedings  of  the  state  of  Georgia  are  wholly  inconsistent 
with  equity  and  good  conscience,  and  tend  to  the  manifest 
wrong  and  oppression. of  these  complainarfts,  and  that  they  are 
equally  violative  of  the  good  faith  of  those  treaties  to  which 
she  is  herself  a  party,  as  well  as  of  the  constitution  and  laws 
of  the  United  States,  these  complainants  fearlessly  allege:  that 
the  wrongs  with  which  they  are  menaced  are  of  a  character 
wholly  irremediable  by  the  common  law;  and  that  these  com- 
plainants are  wholly  without  remedy  of  any  kind,  except  by 
the  interposition  of  this  honourable  court,  they  have  as  little 
hesitation  in  averring. 

But  they  are  advised  that  this  honourable  court  does  possess 
the  power  to  interpose  in  their  behalf  They  beg  leave  hum- 
bly and  respectfully  to  suggest,  that  by  the  constitution  and 
laws  of  the  United  States,  original  jurisdiction  is  conferred  on 
this  court  in  controversies  between  a  state  and  a  foreign  state, 
without  any  restriction  as  to  the  nature  of  the  controversy; 
and  the  policy  of  the  provision  manifestly  contemplates  every 
case  in  which  the  claims  or  conduct  of  a  single  state  towards 
a  foreign  state  may  jeopard  the  peace,  safety,  and  good  faith  of 
the  United  States;  in  all  which  it  is  essential  that  the  contro- 
versy should  be  drawn  to  ihe  forum  of  the  nation,  instead  of 
being  decided  by  the  prejudiced  tribunals  of  the  litigant  state. 
By  the  same  constitution  it  is  provided,  that  that  constitution, 


JANUARY  TERM  1831.  29 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
and  the  laws  of  the  United  States  which  shall  be  made  in 
pursuance  thereof,  and  all  treaties  made,  or  which  shall  be 
made,  under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land,  and  that  the  judges  of  every  state 
shall  be  bound  thereby,  any  thing  in  the  constitution  or  laws 
of  any  state  to  the  contrary  notwithstanding.  Under  which 
last  provision  your  complainants  are  advised  that  your  honours 
have,  on  various  occasions  decided,  that  laws  of  particular 
states  were  unconstitutional  and  void,  on  the  ground  of  their 
being  repugnant  to  the  constitution,  laws,  and  treaties  of  the 
United  States. 

That  your  complainants  are  a  foreign  state,  is  not  only  evi- 
dent by  the  only  test  which  can  be  properly  applied  to  such  a 
question,  the  test  of  allegiance,  but  has  been  again  and  again, 
and  still  is  unequivocally  admitted  by  the  United  States,  by 
the  fact  of  their  being  acknowledged  and  treated  with,  in  that 
character,  by  the  properly  constituted  authorities  of  the  United 
States. 

They  bring  before  your  honours  a  question  of  property 
and  of  personal  as  well  as  national  rights,  involving  liberty 
and  life,  dependent  for  their  ascertainment  on  the  construction 
of  those  treaties  which  have  been  declared  to  be  the  supreme 
law  of  the  land. 

They  allege  that  laws  have  been  passed  by  the  state  of 
Georgia,  in  violation  of  those  treaties,  as  well  as  of  the  con- 
stitution and  laws  of  the  United  States,  by  which  the  property 
and  rights  of  these  complainants  have  been  wrongfully  in- 
vaded and  are  still  threatened  with  perpetual  and  irremediable 
invasion  and  final  destruction. 

Thsy  humbly  and  respectfully  claim  from  your  honours,  in 
the  exercise  of  your  high  judicial  functions,  that  these  laws  of 
Georgia  may  be  declared  to  be  void,  and  their  execution  per- 
petually enjoined,  because  they  are  repugnant  to  these  treaties 
and  to  the  constitution  and  laws  of  the  United  States;  because, 
being  thus  repugnant,  they  violate  those  compacts  to  which 
the  state  of  Georgia  is  herself  a  party;  because  they  tend  to 
the  utter  destruction  of  the  pi-operty  and  dearest  rights  of  your 
complainants,  which  stand  protected  by  these  treaties;  and  be- 
cause they  tend  to  compromit  the  peace,  safety,  and  honour 
of  the  United  States,  for  the  preservation  of  which,  the  trea- 


30  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
ties,  constitution,  and  laws  of  the  United  States  were  mani- 
festly placed  under  the  judicial  guardianship  of  this  high  and 
honourable  court,  by  the  constitutional  declaration,  that  they 
should  be  the  supreme  law  of  the  land,  any  thing  in  the  con- 
stitution or  laws  of  any  state  to  the  contrary  notwithstanding. 

Your  complainants  show  farther  unto  your  honours,  that 
John  Ross  is  the  principal  chief  or  executive  head  of  the 
Cherokee  nation;  and  that,  in  a  full  and  regular  council  of 
that  nation,  he  has  been  duly  authorised  to  institute  this,  and 
all  other  suits  which  may  become  necessary  for  the  assertion 
of  the  rights  of  the  entire  nation;  as  will  appear  by  a  copy  of 
the  legislative  resolution  made  in  the  premises,  and  annexed 
as  part  of  this  bill. 

In  tender  consideration  of  all  which,  and  inasmuch  as  your 
complainants  are  wholly  remediless  in  the  premises,  except 
by  the  interference  of  this  honourable  court:  to  the  end,  there- 
fore, that  the  said  state  of  Georgia,  one  of  the  United  States 
of  America,  may  be  made  defendant  hereto,  witli  apt  words 
to  charge  her  as  such,  and  that  she  may,  by  her  proper  offi- 
cers, according  to  the  established  forms  of  proceeding  in  this 
court,  in  like  cases,  true,  full,  and  perfect  answer  make  to  all 
and  singular  the  premises,  as  fully  and  particularly  as  if  the 
same  were  herein  again  especially  repeated,  and  they  thereto 
particularly  interrogated;  that  the  said  state  of  Georgia,  her 
governor,  attorney  general,  judges,  magistrates,  sheriffs,  de- 
puty sheriffs,  constables,  and  all  other  her  officers,  agents,  and 
servants,  civil  and  military,  may  be  enjoined  and  prohibited 
from  executing  the  laws  of  that  state  within  the  boundary  of 
the  Cherokee  territory,  as  prescribed  by  the  treaties  now  sub- 
sisting between  the  United  States  and  the  Cherokee  nation, 
or  interfering  in  any  manner  with  the  rights  of  self  govern- 
ment possessed  by  the  Cherokee  nation  within  the  limits  of 
their  territory,  as  defitied  by  the  treaty;  that  the  two  laws  of 
Georgia  before  mentioned  as  having  been  passed  in  the  years 
1828  and  1829,  may,  by  the  decree  of  this  honourable  court, 
be  declared  unconstitutional  and  void;  and  that  the  state  of 
Georgia,  and  all  her  officers,  agents,  and  servants,  may  be  for- 
ever enjoined  from  interfering  with  the  lands,  mines,  and 
other  property,  real  and  personal,  of  the  Cherokee  nation,  or 
with  the  persons  of  the  Cherokee  people,  for,  or  on  account 


JANUARY  TERM  1831.  31 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
of  any  thing  done  by  them  within  the  limits  of  the  Cherokee 
territory;  that  the  pretended  right  of  the  state  of  Georgia  to 
the  possession,  government,  or  control  of  the  lands,  mines, 
and  other  property  of  the  Cherokee  nation,  within  their  ter- 
ritory, may,  by  this  honourable  court,  be  declared  to  be  un- 
founded and  void,  and  that  the  Cherokees  may  be  left  in  the 
undisturbed  possession,  use,  and  enjoyment  of  the  same,  ac- 
cording to  their  own  sovereign  right  and  pleasure,  and  their 
own  laws,  usages,  and  customs,  free  from  any  hindrance,  mo- 
lestation, or  interruption  by  the  state  of  Georgia,  her  officers, 
agents,  and  servants;  that  these  complainants  may  be  quieted 
in  the  possession  of  all  their  rights,  privileges,  and  immuni- 
ties, under  their  various  treaties  with  the  United  States;  and 
that  they  may  have  such  other  and  farther  relief  as  this  hon- 
ourable court  may  deem  consistent  with  equity  and  good  con- 
science, and  as  the  nature  of  their  case  may  require. 

May  it  please  the  court  to  grant  to  your  complainants  the 
United  States'  most  gracious  writs  of  subpoena  and  injunction, 
commanding  and  enjoining,  &c.  &c.,  and  these  complainants, 
as  in  duty  bound,  will  ever  pray,  &c.  &c. 

This  bill  was  signed  by  John  Ross  as  principal  chief  of  the 
Cherokee  nation,  who  made  an  affidavit  which  was  subjoined 
to  the  bill,  in  the  following  terms: 

Richmond  County,  State  of  Georgia,  to  wit: 

This  day  came  before  me,  a  justice  of  the  peace  for  the 
county  aforesaid,  John  Ross,  the  principal  chief  of  the  Chero- 
kee nation,  and  made  oath  on  the  holy  evangelists  of  Al- 
mighty God,  that  the  allegations  of  the  foregoing  bill,  so  far 
as  they  are  stated  as  within  the  knowledge  of  the  complain- 
ants, and  so  far  also  as  they  relate  to  any  actings  and  doings 
that  are  stated  as  having  taken  place  by  them,  or  any  of  them, 
or  among  them,  or  by  others  among  them,  and  in  their  terri- 
tory, are  true  to  the  best  of  his  knowledge  and  belief,  and  so 
far  as  they  are  stated  on  the  knowledge  and  information  of 
others,  that  he  believes  them  to  be  true.  Given  under  my 
hand  and  seal,  this  first  day  of  January,  one  thousand  eight 
hundred  and  thirty-one — 1831. 

JOHN  ROSS,  Prin.  Chief, 

Alex.  Grek^  Raiford,  J.  P. 


32  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

SUPPLEMENTAL  BILL. 

The  complainants  beg  leave  to  state  farther  to  this  honoura- 
ble court,  that,  since  their  Bill,  now  submitted,  was  drawn,  the 
following  acts,  demonstrative  of  the  determination  of  the  state 
of  Georgia  to  enforce  her  assumed  authority  over  the  com- 
plainants and  their  territory,  property,  and  jurisdiction,  have 
taken  place. 

The  individual,  called  in  that  bill  Corn  Tassel,  has  been 
actually  hung  in  defiance  of  a'writ  of  error  allowed  by  the 
chief  justice  of  this  court  to  the  final  sentence  of  the  court  of 
Georgia  in  his  case.  That  writ  of  error  having  been  received 
by  the  governor  of  the  state,  was,  as  your  complainants  are 
informed  and  believe,  immediately  communicated  by  him  to 
the  legislature  of  this  state,  then  in  session,  who  promptly  re- 
solved, in  substance,  that  the  supreme  court  of  the  United 
States  had  no  jurisdiction  over  the  subject,  and  advised  the 
immediate  execution  of  the  prisoner,  under  the  sentence  of 
the  state  court,  which  accordingly  took  place. 

The  complainants  beg  leave  farther  to  state,  that  the  legis- 
lature of  the  state  of  Georgia,  at  the  same  session,  passed  the 
following  laws,  which  have  received  the  sanction  of  the  go- 
vernor of  the  state. 

"  An  act  to  authorize  the  survey  and  disposition  of  lands 
within  the  limits  of  Georgia,  in  the  occupancy  of  the  Chero- 
kee tribe  of  Indians,  and  all  other  unlocated  lands  within  the 
limits  of  the  said  state,  claimed  as  Creek  land  ;  and  to  author- 
ize the  governor  to  call  out  the  military  force  to  protect  sur- 
veyors in  the  discharge  of  their  duties:  and  to  provide  for  the 
punishment  of  persons  who  may  prevent,  or  attempt  to  pre- 
vent any  surveyor  from  performing  his  duties,  as  pointed  out 
by  this  act,  or  who  shall  wilfully  cut  down  or  deface  any 
marked  trees,  or  remove  any  land-marks  which  may  be  made 
in  pursuance  of  this  act ;  and  to  protect  the  Indians  in  the 
peaceable  possession  of  their  improvements,  and  of  the  lots  on 
which  the  same  may  be  situate." 

This  act  received  the  assent  of  the  governor  of  the  state 
on  the  21st  of  December  1830;  and  by  its  provisions  survey- 
ors are  authorised  to  be  appointed  to  go  on  the  territory  guar- 


JANUARY  TERM  1831.  33 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
antied  to  your  complainants  by  the  existing  treaties  of  the 
United  States,  and  protected  against  such  invasion  by  the  in- 
tercourse act  of  congress  of  1S02,  and  to  lay  it  off  into  districts 
and  sections,  which  are  to  be  distributed  by  lottery  among  the 
people  of  Georgia,  reserving  to  your  complainants  only  the 
present  occupancy  of  such  improvements  as  the  individuals  of 
their  nation  may  now  be  residing  on,  with  the  lots  on  which 
such  improvements  may  stand,  and  excepting  from  such  reser- 
vations such  improvements  as  your  complainants  may  have 
recently  made  near  their  own  gold  mines.  Thus  the  territory, 
which  the  faith  and  honour  of  the  United  States  stand  pledged 
by  treaty,  and  for  good  and  valuable  consideration,  to  guar- 
anty to  them,  is  authorized  to  be  taken  from  them  by  force, 
by  a  law  of  one  of  the  states,  herself  a  party  to  those  treaties, 
and  having  reaped  the  fruits  of  the  cessions  made  under  their 
authority. 

At  the  same  session  the  legislature  of  Georgia  passed  ano- 
ther act,  entitled, "  an  act  to  declare  void  all  contracts  hereafter 
made  with  the  Cherokee  Indians,  so  far  as  the  Indians  are 
concerned;"  which  act  received  the  assent  of  the  governor  of 
the  state  on  the  23d  of  December  1830. 

By  this  act  it  is  declared  that  no  Cherokee  shall  be  bound 
by  any  contract  thereafter  to  be  entered  into  with  a  white  per- 
son or  persons,  nor  be  liable  to  be  sued  in  any  of  the  courts 
of  law  or  equity  of  the  state  on  such  contract.  And,  as  by  a 
former  law  of  the  state  of  Georgia,  the  courts  of  the  Cherokee 
territory  are  abolished,  the  practical  result  of  this  law  will  be, 
that  as  your  complainants  were  by  a  former  law  disfranchised 
of  the  right  of  bearing  evidence  in  the  court  of  Georgia,  they 
are  now  disabled  to  make  a  valid  or  obligatory  contract  with  a 
white  man;  and  this  at  a  time  when,  by  the  permanent  laws  of 
the  United  States,  white  traders  are  authorised  to  come  among 
them,  to  settle  in  their  country,  and  trade  with  them,  under 
the  license  of  the  president  of  the  United  States. 

The  legislature  of  Georgia,  at  its  same  session,  passed  ano- 
ther law,  entitled,  "an  act  to  provide  for  the  temporary  dis- 
posal of  the  improvements  and  possessions  purchased  from 
certain  Cherokee  Indians  and  residents;"  which  act  received 
the  assent  of  the  governor  of  the  state  on  the  22d  of  December 
1830.  By  this  act  the  governor  of  the  state  is  authorised  to  take 
Vol.  V.—E 


34  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
possession  of  improvements  under  a  treaty  of  the  6th  of  May 
1828,  to  which  these  complainants  were  not  parties,  but  which 
was  made  between  the  Cherokee  Indians  west  of  the  Mississ- 
ippi and  the  United  States,  which  improvements  were  never 
ceded  or  sold  by  these  complainants  to  the  United  States,  and 
by  the  laws  and  usages  of  the  Cherokee  country  could  not  be 
ceded  or  sold  by  the  individual  emigrant  Cherokees,  and  were 
not  even  intended  by  the  treaty  in  question  to  be  so  ceded  or 
sold:  since   by  these  laws  and  usages  there  is   no   individual 
property  in  lands  among  the  Cherokees,  but  the  whole  belongs 
to  the  nation  as  a  nation,  the  individual  settler  having  no  other 
right  to  his  settlements  and  improvements  than  a  right  tooccupy 
and  use  them  so  long  as  he  pleases;  and,  when  he  is  disposed 
to  remove,  a  right  to  sell  his  right  of  occupancy  and  use  in  his 
improvements  to  some  other  Cherokee,  and  to  no   other  per- 
son of  any  other  nation.     By  the  same  act  the    governor  is 
authorised  to  take  possession  of  other  improvements  claimed 
by  Georgia  under  any  other  treaty.     Under  these  words  the 
state  of  Georgia  alludes  to  a  claim  which  she  sets  up  under  the 
treaty  of 1817,  by  which  the  rights  to  certain  improve- 
ments of  emigrant  Cherokees  were  held  in  suspense   until  it 
should  be  seen  by  the  final  adjustment  of  the   boundary  line 
between  the  Cherokees  and  the  United  States,  on  wjiich  side 
of  that  line  these  improvements  should  fall.     This  boundary 
line  was  finally  adjusted  by  the  treaty  of  1819;  yet  the  state 
of  Georgia  still  claims  the   improvements  which  fell  on  the 
Cherokee  side  of  this  boundary;  and  these  are  the  improve- 
ments of  which  the  governor  of  Georgia  is  authorized  to  take 
possession.     Thus  the  state  of  Georgia  presents  the  spectacle 
of  a  state  asserting  rights   under   the   treaties   made   by  the 
United  States  with  the  Cherokee  Indians,  under  her  own  arbi- 
trary construction  of  these  treaties,  while,  by  the  whole  course 
of  her  legislation,  deliberations,  and  actions,  she  disclaims  the  ' 
obligation  of  these  treaties,  setting  them  at  open  defiance,  and 
acting  as  if  there  were  no  treaties  in  the  case. 

At  its  same  session  the  legislature  of  Georgia  passed  an- 
other law,  entitled,  <'  an  act  to  prevent  the  exercise  of  assumed 
and  arbitrary  power  by  all  persons  under  pretext  of  authority 
from  the  Cherokee  Indians  and  their  laws,  and  to  prevent 
white  persons  from  residing  within  that  part  of  the  chartered 
limits  of  Georgia,  occupied  by  the  Cherokee  Indians,  and  to 


JANUARY  TERM  1831.  35 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
provide  a  guard  for  the  protection  of  the  gold  mines,  and   to 
enforce  the  laws  of  the  state  within  the  aforesaid  territory." 

This  act  received  the  assent  of  the  governor  of  the  state  on 
the  22d  December  1830.  By  this  act  it  is  made  a  high  mis- 
demeanour puriishable  by  imprisonment  in  the  penitentiary, 
at  hard  labour,  for  four  years,  for  your  complainants  to  call  a 
council  or  legislative  assembly  in  their  own  territor)'^,  under 
their  own  constitution  and  laws,  framed  under  the  patronage 
and  encouragement  of  the  United  States,  or  to  hold  such 
council  or  assembly,  or  to  hold  any  court  or  tribunal  what- 
ever, or  to  serve  process  or  execute  the  judgments  of  their 
own  courts,  with  various  other  provisions  of  a  like  character. 
White  persons  are  excluded  from  the  territory,  unless  they 
go  under  a  license  from  the  governor  of  the  state,  and  take  the 
oath  of  allegiance  to  the  state  of  Georgia,  when  they  are 
authorized  to  reside  within  the  limits  of  these  complainants. 
The  turnpike  roads  and  toll  bridges  erected  by  your  complain- 
ants at  their  own  expense,  and  under  the  authority  of  their  own 
laws,  are  abolished.  And  the  governor  is  authorized  to  sta- 
tion an  armed  military  force  in  the  territory  to  guard  the  gold 
mines  which  belong  to  your  complainants,  but  to  which  the 
state  of  Georgia  now  asserts  an  exclusive  right,  and  to  enforce 
the  laws  of  Georgia  upon  them. 

At  the  same  session  of  its  legislature,  the  state  of  Georgia 
passed  another  act,  entitled  "an  act  to  authorize  the  governor 
to  take  possession  of  the  gold,  silver,  and  other  mines,  lying 
and  being  in  that  section  of  the  charter-ed  limits  of  Georgia, 
commonly  called  the  Cherokee  country,  and  those  upon  all 
other  unappropriated  lands  of  the  state,  and  for  punishing  any 
person  or  persons  who  may  hereafter  be  found  trespassing 
upon  the  mines." 

This  act  received  the  assent  of  the  governor  of  the  state  on 
the  2d  of  December  1830.  By  the  preamble  to  this  act  the 
title  to  the  mines  belonging  to  your  complainants  is  asserted 
to  be  in  the  state  of  Georgia.  By  its  provisions  twenty  thou- 
sand dollars  are  appropriated,  and  placed  at  the  disposal 
of  the  governor,  to  enable  him  to  take  possession  of  these 
mines;  and  it  is  made  a  crime  in  your  complainants,  pun- 
ishable by  imprisonment  in  the  penitentiary  of  Georgia,  at 
hard  labour,  for  four  years,  to  work  their  own  mines. 


36  SUPREME  COURT. 

[The  Cherokee  Nation  vs,  'I  he  Stale  of  Georgia.] 
Your  complainants  have  not  had  it  in  their  power  to  pro- 
cure an  authenticated  copy  of  these  several  laws.  Until  they 
can  do  so,  they  beg  leave  to  refer  to  them  at  present,  as  they 
have  been  published  in  a  newspaper  called  the  Georgia  Jour- 
nal, edited  at  Milledgeville,  the  seat  of  government  of  the 
state  of  Georgia,  which  newspaper  is  herewith  exhibited;  and 
they  pray  that  they  may  be  considered  as  a  part  of  this  bill. 

Your  complainants  further  show  unto  your  honours,  that, 
under  these  laws,  in  relation  to  the  mines  within  the  tex'ritory 
belonging  to  your  complainants,  and  guarantied  to  them  by  the 
treaties  of  the  United  States,  the  governor  of  Georgia  has 
proceeded  to  levy  an  armed  force  of  the  citizens  of  that  state, 
who  are  now  stationed  at  those  mines,  and  who  are  employed 
according  to  the  laws  under  which  they  have  been  raised,  in 
restraining  your  complainants  in  their  rights  and  liberties  in 
regard  to  their  mines,  and  in  enforcing  the  laws  of  Georgia 
upon  them. 

And  your  complainants  beg  leave  to  state,  as  a  specimen  of 
the  outrages  practised  upon  them  by  this  armed  band,  that  a 
party  of  them,  about  twenty-five  in  number,  having  passed 
the  night  of  the  9th  of  the  last  month  at  the  house  of  Mr 
John  Martin,  a  Cherokee  citizen,  and  the  treasurer  of  the 
Cherokee  nation,  and  having  been  received  and  entertained  in 
the  best  manner  in  his  power,  at  his  house  at  Cossewatey, 
within  the  territory,  near  New  Echota,  the  capital  thereof, 
informed  him  on  the  next  morning  that  he  was  their  prisoner; 
and,  without  showing  any  warrant,  or  alleging  any  offence 
committed  by  him  against  the  state  of  Georgia,  marched  him 
off  from  his  home  and  family,  as  a  prisoner,  a  distance  of  forty- 
five  miles,  to  their  head  quarters.  There,  after  various  un- 
founded reproaches  and  indignities,  the};^  released  him  and 
suffered  him  to  return  home. 

The  same  party,  at  the  time  of  this  arrest,  broke  and  cut 
down  a  toll  gate  on  the  federal  road,  leading  from  Georgia  to 
Tennessee,  through  the  Cherokee  nation,  which  toll  gate  was 
erected  under  a  law  of  the  nation,  and  in  conformity  with  the 
provisions  of  a  treaty  between  them  and  the  United  States, 
which  is  now  in  manuscript  in  the  nation,  but  not  to  be  found 
among  those  which  have  been  printed. 

These  latter  transactions,  with  regard  to  the  arrest  of  the 


JANUARY  TERM  1831.  37 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
treasurer  of  the  Cherokee  nation,  and  the  destruction  of  the 
toll  gate,  are  stated  on  the  authority  of  letters  recently  re- 
ceived at  Washington  from  the  principal  chiefs  and  other 
respectable  citizens  of  the  Cherokee  nation,  and  are  fully  be- 
lieved by  the  delegation  of  the  nation,  now  at  the  city, of 
Washington,  who  received  them,  and  whose  affidavit  is  hereto 
annexed. 

These  complainants  allege,  that  the  several  legislative  acts, 
herein  set  forth  and  referred  to,  are  in  direct  violation  of  the 
treaties  enumerated  in  their  bill,  to  which  this  is  a  supplement, 
as  well  as  in  direct  violation  of  the  constitution  of  the  United 
States,  and  the  acts  of  congress  passed  under  its  authority,  in 
the  year  1S02,  entitled,  ''an  act  to  regulate  trade  and  inter- 
course with  the  Indian  tribes,  and  to  preserve  peace  on  the 
frontiers." 

These  complainants  pray  that  this  supplement  may  be  taken 
and  received  as  a  part  of  their  bill,  that  the  several  laws  of 
Georgia  herein  set  forth  may  be  declared  by  the  decree  of  this 
court  to  be  null  and  void,  on  the  ground  of  the  repugnancy 
to  the  constitution,  laws,  and  treaties  set  foi-th  above,  and  in 
the  bill  to  v/hich  this  is  a  supplement,  and  that  these  com- 
plainants may  have  the  same  relief  by  injunction  and  a  decree 
of  peace,  or  otherwise,  according  to  equity  and  good  con- 
science, against  these  laws  as  against  those  which  are  the  sub- 
ject of  their  bill  as  first  drawn:  and  these  complainants,  as  in 
duty  bound,  will  ever  pray. 

Washington  county,  district  of  Columbia,  sc. 

This  day  came  before  me,  William  Hewitt,  a  justice  of  the 
peace  for  the  county  aforesaid,  Richard  Taylor,  John  Ridge, 
and  W.  S.  Coodey,  of  the  Cherokee  nation  of  Indians,  and 
made  oath  on  the  Holy  Evangelists  of  Almighty  God,  that  the 
allegations  of  the  foregoing  statements,  so  far  as  they  are 
stated  to  be  made  on  their  own  knowledge,  are  true,  and  so 
far  as  they  are  stated  to  be  made  on  the  information  of  others, 
they  believe  them  to  be  true.  Given  under  my  hand  this  5th 
day  of  March  1831. 

Signed,  WILLIAM  HEWITT,  J.  P. 

No  proof  was  offered  of  the  service  of  a  copy  of  this  sup- 
plemental bill  on  the  governor  or  attorney  general  of  Georgia. 


-1.SGS88 


38  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
MrSergeantjin  support  of  the  motion  for  the  injunction,  after 
recapitulating  the  principal  heads  of  the  bill,  said,  that  in  the 
brief  exposition  to  bepresented  of  the  caseof  the  complainants, 
he  should  confine  himself  strictly  and  entirely  to  the  judicial  as- 
pejct  of  the  question,  avoiding  all  political  considerations,  and 
every  topic  which  did  not  conduce  directly  to  a  legal  conclusion. 
That  he  would  endeavour  still  further  to  simplify  the  matter, 
b}'-  confining  himself,  as  far  as  possible,  to  the  very  party  be- 
fore the  court,  the  Cherokee  nation:  without  wandering  into 
the  discussion  ofquestions  about  Indians  in  general,  their  con- 
dition and  rights,  which  must  necessarily  be  vague  and 
indefinite.  Each  case  must  at  last  depend,  a  few  general  prin- 
ciples being  first  settled,  upon  its  own  particular  circumstances. 
"  With  this  view,  and  within  these  limits,  he  would  consider, 
and  endeavour  to  establish  the  following  propositions. 

1.  That  the  parties  before  the  court  were  such  as,  under  the 
constitution,  to  give  to  this  court  original  jurisdiction  of  the 
complaint  made  by  the  one  against  the  other. 

2.  That  such  a  case  or  controversy .,  of  a  judicial  nature,  was 
presented  by  the  bill,  as  to  warrant  and  require  the  interposi- 
tion of  the  authority  of  the  court. 

3.  That  the  facts  stated  by  the  complainants,  exhibited  such 
a  case  in  equity,  as  to  entitle  them  to  the  specific  remedy  by 
injunction  prayed  for  in  the  bill. 

In  the  present  stage  of  the  inquiry,  and  for  the  purpose  of 
this  motion,  the  statement  in  the  bill  was  to  be  received  as 
true.  The  points  before  mentioned,  therefore,  being  made 
out,  there  could  be  no  doubt  of  the  right  of  the  complainants 
to  an  injunction  against  the  state  of  Georgia,  to  issue  imme- 
diately, and  to  continue  until  the  coming  in  of  an  answer 
sufficient  to  dissolve  it;  or  until  it  should  be  merged  in  the 
greater  injunction  upon  a  decree  in  the  cause.  These  points 
he  would  now  proceed  to  consider. 

1.  The  power  relied  upon  is  contained  in  the  second  section 
of  the  third  article  of  the  constitution  of  the  United  States, 
limited  afterwards  by  the  eleventh  amendment.  "  Section 
2.  The  judicial  power  shall  extend  to  all  cases  in  law  and 
equity  arising  under  this  constitution,  the  laws  of  the  United 
States,  ayid  treaties  made,  or  which  shall  be  tnade  under 
their  authority,  &c.  to  controversies  between  two  or  more 
states,  between  a  state  and  citizens  of  another  state,  between 


JANUARY  TERM  1831.  89 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
citizens  of  different  states,  between  citizens  of  the  same  state 
claiming  lands  under  grants  of  different  states,  and  between  a 
state  or  the  citizens  thereof,  and  foreign  states,  citizens  or 
subjects."  "In  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls,  and  those  in  which  a  state  shall  be  a 
party,  the  Supreme  Court  shall  have  original  jurisdiction. 
In  all  the  other  cases  before  mentioned,  the  Supreme  Court 
shall  have  appellate  jurisdiction,  both  as  to  law  and  fact,  with 
such  exceptions  and  under  such  regulations  as  Congress  shall 
make." 

The  first  of  these  clauses  specifies,  by  classification,  the 
cases  to  which  the  judicial  power  of  the  United  States  shall 
extend,  comprehending  such  as  from  the  nature  of.  the  subject 
matter,  or  from  the  character  of  the  parties,  were  proper  for 
that  jurisdiction.  The  second  distributes  the  authority 
given  by  the  first,  among  the  courts  of  the  union,  assigning 
to  cases  of  national  jurisdiction  their  appropriate  forum.  It 
is  subordinate  to,  and  in  execution  of  the  former. 

There  can  be  no  doubt,  that  under  this  article  all  cases 
'•  arising  under  treaties"  are  cases  cognizable  by  the  judiciary 
of  the  United  States.  They  are  within  the  very  words  of  the 
article.  The  reason  for  including  them  is  obvious,  and  en- 
tirely conclusive.  Treaties  are  declared  to  be  "the  supreme 
law  of  the  land."  Article  6,  section  2.  They  are  placed, 
in  this  respect,  upon  the  same  footing  with  the  constitution 
of  the  United  States  and  acts  of  congress.  As  acts  of  national 
law,  it  was  equally  essential  that  the  national  power  should  be 
adequate  to  their  construction  and  their  execution,  by  its  own 
exertion,  without  dependence  upon  any  other  authority,  and 
with  that  uniformity  which  could  only  be  secured  by  a  su- 
preme judicial  tribunal.  As  acts  of  national  faith,  binding 
upon  the  honour,  and  involving  the  relations  and  peace  of  the 
whole  nation,  they  had  even  a  stronger  claim  to  the  cognizance 
of  the  national  judiciary.  That  they  are  entitled  to  it,  in 
some  of  the  courts  of  the  union,  is  not  to  be  denied  or  dis- 
puted. The  jurisdiction  of  this  court,  in  its  original  or  its 
appellate  exercise,  as  certainly  extends  to  them  under  the 
constitution. 

The  original  jurisdiction  of  the  supreme  court,  so  far  as 
concerns  the  present  question,   depends  upon   the  fact  that  a 


40  SUPREME   COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
state,  that  is,  a  state  pf  this  union,  is  a  party.     It  matters  not 
who  may  be  the  other  party.     The  dignity  of  a  state  entitles 
the  case  in  which  it  is  a  party  to  the  jurisdiction  of  the  highest . 
tribunal.     Chisholm's  Ex.  vs.  Slate  of  Georgia,  2  Dall.  419. 
State  of  Georgia  vs.  Brailsford,  2  Dall.  402,  415. 

The  eleventh  amendment  of  the  constitution  does  not  ope- 
rate, in  terms,  upon  the  original  jurisdiction:  but  upon  the 
judicial  power  of  the  United  States,  in  certain  cases.  ''The 
judicial  power  of  the  United  States  shall  not  be  construed  to 
extend  to  any  case  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  state, 
or  by  citizens  or  subjects  of  any  foreign  state.  Its  operation 
upon  the  original  jurisdiction  of  the  supreme  court  is  only 
consequential,  by  excluding  altogether  from  the  cognizance 
of  the  federal  judiciary  certain  cases  assigned  to  it  by  the  first 
clause  of  the  original  article,  and  which  in  the  distribution  of 
the  second  clause  had  been  made  subjects  of  that  original  juris- 
diction. 

This  amendment  operates  by  way  of  limitation  or  excep- 
tion. It  applies  only  to  the  excepted  cases,  leaving  the  juris- 
diction and  the  power,  in  all  other  cases,  exactly  as  they 
stood  under  the  original  article.  What  are  the  cases  specified 
as  exceptions?  They  are  very  plainly  and  distinctl}''  defined, 
suits  against  any  one  of  the  United  States  "by  citizens  of 
another  state,  or  by  citizens  or  subjects  of  any  foreign  state." 
With  this  exception,  which  is  too  plainly  expressed  to  admit 
of  doubt  or  construction,  the  whole  of  the  third  article  remains 
in  full  force,  and  the  jurisdictions  created  by  it,  as  to  their 
extent  and  distribution,  are  unaltered.  The  original  jurisdic- 
tion of  this  court,  therefore,  still  exists,  wherever  it. existed 
before,  unless  it  be  in  the  case  of  a  suit  commenced  against  a 
state  of  the  union  "by  citizens  of  another  state,  or  by  citizens 
or  subjects  of  a  foreign  state."  It  is  in  full  force  where  a 
"foreign  state"  is  one  party,  and  a  "  state"  of  this  union  is 
the  other  party,  or  where  two  states  are  parties.  Cohens  vs. 
Virginia,  6  Wheat.  264. 

It  has  sometimes  been  intimated  that  the  Cherokees  are 
neither  citizens  of  any  ''state,"  nor  "  citizens  or  subjects  of 
any  foreign  state."  Supposing  for  a  moment  that  this  imper- 
fect view  were  correct,  what  would  be  the  legal,  or  rather  the 


JANUARY  TERM  1831.  41 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
constitutional  result  of  it?  The  limitation  or  exception  would 
not  apply  to  them;  and  (a  state  being  a  party)  they  would 
have  a  right  to  sue  in  this  court,  unless,  indeed,  it  were  fur- 
ther alleged  that  they  were  some  how  put  out  of  the  protection 
of  the  law,  and  incapacitated  to  sue  at  all,  which  it  is  believed, 
has  never  been  suggested.  The  matter  would  stand  thus:  the 
case  arises  under  a  treaty,  and  is  therefore  cognizable  by  the 
courts  of  the  union.  A  "  state"  is  a  party.  The  jurisdiction, 
then,  among  the  courts  of  the  union,  belongs  to  the  supreme 
court,  being  given  to  that  tribunal  by  the  constitution  as 
originally  made,  and  not  taken  away  by  the  amendment. 
Such  would  be  the  result  of  that  argument. 

That  question,  it  was  admitted,  did  not  arise  here;  and  it 
was  adverted  to,  only  for  the  light  thrown  by  it  upon  the 
case  that  was  under  discussion.  The  amendment,  it  was 
known  from  its  history,  was  intended  to  prevent  suits  against 
"  states"  by  individuals.  Cohens  vs.  Virginia,  6  Wheaton, 
406,  407.  The  description  was  meant  to  embrace  all  indivi- 
duals who  might  sue.  How  are  they  described?  By  a  classi- 
fication understood  to  embrace  them  all;  "citizens  of  another 
state"  (of  the  union)  "or  citizens  or  subjects  of  any  foreign 
state:'^  clearly  showing  that  all  who  were  not  citizens  of  a 
state,  must  be  in  the  meaning  of  the  constitution,  citizens  or 
subjects  of  Q. foreign  state. 

The  Cherokees,  in  this  case,  approach  the  court,  not  indi- 
vidually, but  in  their  aggregate  capacity,  as  "  the  Cherokee 
nation  of  Indians,  a  foreign  state."  The  proposition  asserted 
on  their  behalf  is,  that  they  are  "  a  foreign  state,"  with  all 
the  rights  and  attributes  predicated  of  them  in  their  bill  of 
complaint. 

In  what  manner  is  this  inquiry  to  be  judicially  pursued? 
What  lights  are  to  be  followed?  What  constitutes  the  Judicial 
evidence  of  the  existence  of  a  foreign  state,  as  such?  Fortu- 
nately, we  are  furnished  with  an  answer  to  these  questions  by 
settled  and  authoritative  decisions,  of  this,  the  highest  tribunal 
in  the  land.  As  to  new  states  arising  in  the  revolutions  of  the 
world,  it  is  the  exclusive  right  of  governments  to  acknow- 
ledge them;  and  until  such  recognition  by  our  own  government, 
or  by  the  government  of  the  empire  to  which  such  new  state 
F 


42  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  Slate  of  Georgia.] 

previously  belonged,  courts  of  justice  are  bound  to  consider 
the  ancient  state  of  things  as  remaining  unchanged.  Rose  vs. 
Himeley,  4  Cranch,  292.  Gelston  vs.  Hoyt,  3  Wheat.  324. 
United  States  vs.  Palmer,  3  Wheat.  634.  Divina  Pastora, 
4  Wheat.  63,  and  note  to  65. 

In  matters  of  judgment,  the  ancient  state,  whatever  it  was, 
continues,  until  it  is  changed  by  a  competent  authority:  and 
of  that  ancient  state,  of  the  changes,  if  any,  it  has  undergone, 
the  time  of  those  changes,  or  its  continuance  to  the  present 
time,  the  acts  of  our  government  are  authentic  and  decisive 
evidence. 

Of  these  acts,  establishing  judicially  the  existence  and  cha- 
racter of  other  states  and  nations,  the  most  unequivocal  and 
conclusive  must  be  a  treaty.  It  is  the  act  of  the  nation ;  in 
its  nature,  deliberate  and  solemn;  in  its  obligation,  most  sacred; 
and,  besides  its  efficacy  as  a  national  compact  binding  the  na- 
tional faith  and  honour,  it  is  made  obligatory  upon  individuals, 
upon  authorities  and  upon  tribunals,  by  the  constitutional  de- 
claration that  it  is  "  the  supreme  law  of  the  land." 

This  principle  being  settled,  as  it  must  certainly  be  conceded 
to  be,  how  does  it  apply  to  the  present  inquiry? 

From  the  beginning  of  the  existence  of  the  United  States 
as  a  nation  to  the  present  time,  there  have  been  no  less  than 
fourteen  public  treaties  made  with  the  Cherokee  nation  of  In- 
dians; one  under  the  articles  of  confederation,  and  thirteen 
under  the  constitution;  all  of  them  with  the  solemnities  that 
belong  to  public  national  compacts  made  between  independent 
states  or  nations. 

The  first  of  these  treaties  was  made  as  long  ago  as  the  year 
1785;  and  the  last  as  recently  as  the  year  1819. 

These  treaties  are  at  the  present  moment  in  full  force;  and 
on  the  face  of  them  they  bear,  that  on  the  one  side  they  are 
made  by  the  United  States,  on  the  other,  by  the  Cherokee 
nation. 

In  inquiring,  judicially,  into  the  fact,  the  first  remark  that 
presents  itself  is,  that  the  aggregate  existence  of  the  Chero- 
kees,  with  capacity  to  enter  into  binding  national  compacts, 
is  ipso  facto  admitted.  How  can  this  be,  if  they  are  not  a 
nation  or  state?  They  act  by  public  agents,  few  in  number, 
representing  the  aggregate  or  community,  and  binding  all  the 


JANUARY  TERM  1831.  43 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
individuals  of  which  that  community  is  composed,  in  the  same 
manner  as  the  public  agents  of  the  United  States,  on  the  other 
side,  contract  for  the  whole  people  of  the  United  States. 
How  could  this  be,  if  there  were  not  such  a  community  or 
state? 

But  it  is  not  by  the  inference  only  (irresistible  as  it  is)  that 
the  fact  is  established.  It  is  asserted  in  terms  in  every  treaty, 
from  the  first  to  the  last.  The  treaty  of  the  28th  November 
1785  expressly  styles  them  a  ''nation."  Sect.  6.  In  the 
succeeding  treaties,  the  same  description  is  applied  in  almost 
every  line,  as  any  one  who  will  be  at  the  trouble  to  examine 
them  will  perceive.  See  particularly  the  preamble  of  the 
treaty  of  Holston,  Art.  1,  and  the  treaty  of  Washington  in 
1819. 

The  subjects,  too,  of  these  treaties  are  unequivocally  of  na- 
tional character  and  concernment:  war;  peace;  exchange  of 
prisoners;  national  limits;  mutual  rights,  which  nations  only 
could  claim  or  enjoy;  and  mutual  duties,  which  nations  only 
could  fulfil. 

The  obligations  are  national;  the  sanctions  are  national;  the 
breach  is  national:  and  the  impress  of  national  character,  as 
belonging  to  the  Cherokee  Indians,  is  thus  deeply  and  inse- 
parably fixed  upon  the  treaties  in  every  variety  of  way,  and 
with  them  transferred  to  our  statute  book  as  a  part  of  the 
*'  supreme  law  of  the  land."  Whatever  others  may  say,  so 
long  as  these  treaties  remain  in  force,  the  Cherokee  Indians 
are,  by  our  laws,  a  state  or  nation. 

It  was  not  now  a  question,  what  the  United  States  might 
heretofore  have  done,  or  what  they  may  do  hereafter.  That 
belonged  properly  to  another  head  of  inquiry.  The  present 
purpose  was  only  to  inquire  judicially  into  the  fact  as  now 
existing,  according  to  the  established  principle  already  stated. 
Following  the  rule  of  interpretation,  or  rather,  of  evidence, 
thus  established,  were  not  the  Cherokee  Indians  a  ^^ foreign 
state,"  within  the  meaning  of  the  constitution?  It  would  be 
sufficient  to  answer,  that  they  certainly  arc  not  a  state  of  this 
union.  What  then  can  they  be  but  a  foreign  state?  The  con- 
stitution knows  of  but  two  descriptions  of  states,  domestic  and 
foreign.  Those  which  are  not  included  in  the  former  class 
must  necessarily  fall  into  the  latter.     Nothing  can  be  clearer 


44  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
than  this;  following  either  the  language  or  the  meaning  of  the 
constitution.  There  is  no  third  description  in  that  instru- 
ment; and  there  is  no  case  of  estate,  which  was  not  intended 
to  be  within  the  scope  of  its  judicial  authority,  whenever  cir- 
cumstances might  make  it  a  duty  to  ourselves  or  to  others  to 
interpose  its  exercise.  It  is  true  that  the  Cherokee  nation 
have  no  part  or  right  in  the  constitution  of  the  United  States, 
because  they  are  a  foreign  state,  and  that  constitution  is  the 
compact  only  of  the  states  and  citizens  of  this  union.  But 
there  is  a  power  given  by  the  constitution  which  they  may 
invoke  when  they  have  a  demand  of  justice;  a  power  con- 
ferred upon  the  authorities  of  the  union,  and  in  its  nature  con- 
clusive. What  reason  can  be  given  why  it  should  not  equally 
extend  to  them  as  to  all  other  states. 

The  constitution  itself  created  no  new  state  of  things.  It 
operated  upon  a  state  then  existing,  and  of  very  long  stand- 
ing. From  the  first  settlement  of  the  country  by  Europeans, 
the  Cherokees  existed  as  an  independent  nation.  They  never 
became  incorporated  with  the  European  settlers,  nor  sub- 
jected by  them.  It  is  only  by  one  of  these  modes,  or  by  utter 
extinction,  that  they  could  cease  to  exist  as  a  nation.  Such 
as  they  were  at  the  first,  such  they  have  continued  to  be,  and 
such  they  now  are.  If  any  change  has  ever  taken  place  in  their 
condition,  and  especially  one  so  material  as  to  destroy  their 
independent  national  character,  it  is  for  those  who  assert  it  to 
show  when,  and  how,  this  great  change  was  efiected.  The 
history  of  the  case  is  in  this  respect  the  law  of  the  case.  In 
what  part  of  their  history  is  it  to  be  found?  The  European 
claim  of  discovery  never  asserted  their  subjection  or  extin- 
guishment as  its  consequence.  It  asserted  nothing  in  respect 
to  them.  It  only  fixed  the  limits  of  the  pretensions  of  differ- 
ent European  states  or  sovereigns  between  themselves;  each 
maintaining  an  exclusive  right  to  what  he  had  discovered,  and 
within  his  discovery  to  deal  with  the  natives  according  to  his 
own  will,  without  interference  by  the  others.  The  conduct  of 
one  was  no  I'ule  or  law  to  his  neighbour,  except  as  it  evidenced 
the  common  consent  to  abstain  from  interference.  Each  was 
the  absolute  master  of  his  own  conduct,  and  made  the  law  for 
himself  within  his  own  limits.  If  he  had  strength  enough  to 
do  so,  he  made  the  law  for  the  native  inhabitants  according 


JANUARY  TERM  1831.  45 

[Tho  Cherokee  Nation  vs.  The  Stale  of  Georgia.] 
to  his  own  will  and  pleasure,  with  more  deference  to  the  sug- 
gestions of  his  own  passions  and  appetites  tlian  to  the  dictates 
of  justice  or  of  mercy.  In  some  portions  of  the  discovered 
hemisphere  they  were  hunted  with  blood  hounds  and  exter- 
minated. Whole  races  of  men  have  long  since  disappeared 
from  the  face  of  the  earth  which  they  occupied.  In  others, 
their  soil  was  forcibly  seized  by  the  invaders,  and  the  native 
inhabitants  became  the  slaves  of  their  conquerors.  Where 
these  things  happened,  nations,  of  course,  ceased  to  exist. 
Such  was,  then,  the  stern  policy  of  the  discoverer.  But  that 
is  not  our  case. 

He  would  not  enter  now  into  a  discussion  of  the  abstract 
question  of  right  as  it  stood  between  the  European  discover- 
ers and  the  native  inhabitants,  nor  attempt  to  set  up  here, 
on  behalf  of  the  latter,  rights  which  (however  they  might 
have  stood  upon  original  grounds)  were  now  to  be  no  other- 
wise considered  in  a  judicial  tribunal,  than  as  they  had  been 
settled  by  a  long  course  of  time  and  practice,  and  by  judicial 
decisions,  including  a  decision  of  this  court,  to  which  he 
should  hereafter  refer.  He  was  satisfied  to  take  the  matter  as 
he  found  itj  to  disturb  nothing  that  was  past  or  settled,  but  to 
inquire  simply  into  the  fact,  as  it  was  when  the  constitution 
was  made,  and  as  it  still  is. 

With  this  view  he  proceeded  to  state,  that  the  claim  of 
Great  Britain  never  asserted  the  incorporation  or  subjection 
of  the  native  inhabitants  within  her  discovery,  nor  the  extin- 
guishment of  their  national  existence  and  character.  It  was 
always  a  limited  claim,  and  left  to  them  all  beyond  its  limits. 
See  Johnson  vs.  M'Intosh,  8  Wheat.  543.  With  the  excep- 
tion of  this  limited  claim,  and  what  has  since  been  yielded  by 
treaty,  the  Cherokee  nation  of  Indians  is  the  same  nation  now, 
that  it  was  when  the  soil  of  their  country  was  first  pressed  by 
the  foot  of  an  European.  They  occupy  this  moment  a  por- 
tion of  the  very  territory  which  then  acknowledged  their 
authority.  Successive  revolutions  have  changed  the  parties 
on  the  other  side;  but  each  in  succession  has  claimed  the  rights 
and  acknowledged  the  obligations  of  its  predecessors.  The 
acknowledgement  has  never  been  questioned  of  their  existence 
as  an  independent ybm^'7i  state;  on  the  contrary,  it  has  been 
continually,    habitually,    and   uninterruptedly   repeated   and 


46  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
confirmed,  so  that  from  the  beginning  to  the  present  day  there 
is  one  uniform   current  of  authentic  testimony,  without  the 
slightest  semblance  of  contradiction. 

Thus,  the  constitution  of  the  United  States  found  the  Che- 
rokee nation  at  its  establishment — a  state,  not  of  the  union, 
and  yet  a  state.     What  could  it  be  but  a  foreign  state? 

It  was  not  necessary,  for  the  present  purpose,  to  go  back  to 
the  numberless  treaties  made  with  the  Cherokees  before  the 
revolution.  By  whomsoever  made,  they  were  uniform  in 
their  admission,  express  and  implied.  History,  too,  is  uni- 
form in  attesting  their  existence  as  a  foreign  state,  composed 
of  foreigners,  owing  no  allegiance  to  the  crown  of  England, 
to  the  colony,  to  the  state,  or  to  the  union. 

When  the  confederation  of  these  states  was  formed, 
where  was  this  subject  arranged?  Among  the  foreign  sub- 
jects which  were  of  national  concern,  and  to  be  dealt  with  and 
managed  by  the  national  power.  There  could  have  been  no 
doubt;  for  if  there  had  been,  that  jealousy  which  yielded  no- 
thing but  to  the  most  evident  necessity,  and  even  withheld 
much  which  a  short  experience  proved  to  be  indispensable; 
would  not  have  conceded  this.  But  it  was  conceded.  Con- 
gress had  the  power  of  "  entering  into  treaties  and  alliances." 

They  had  the  power  also  of  "regulating  the  trade  and 
managing  all  the  affairs  of  the  Indians."  Under  these  pow- 
ers the  treaty  of  Hopewell  was  made  in  the  year  1785, 
between  the  United  States  on  the  one  side  and  the  Cherokee 
Indians  on  the  other,  and  mutual  faith  was  solemnly  pledged 
between  parties  admitted  to  be  competent  to  contract  as 
nations. 

This  was  the  state  of  things  when  the  constitution  of  the 
United  States  was  formed  to  establish  a  more  perfect  union. 
Can  any  thing  be  stronger  to  fix  the  construction  of  that  instru- 
ment upon  the  point  in  question?  A  treaty  with  the  Chero- 
kee Indians,  made  under  the  authority  of  congress,  within  two 
years  only  from  the  time  when  the  convention  completed  its 
labours,  was  already  in  the  statute  book,  and  was  one  of  the 
treaties  "made"  which  that  constitution  declared  should  be  the 
"supreme  law  of  the  land,"  attesting  the  existence  of  the 
nation,  as  a  foreign  state,  and  its  competency  in  that  capacity, 
though  within  the  limits  of  a  state  or  states  of  this  union,  to 


JANUARY  TERM  1831.  47 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
contract  with  the  United  States.     Besides  its  other  sanctions — 
sufficient  if  public  faith   be  regarded — this    treaty   has   the 
sanction,  in  a  peculiar  manner,  of  the  constitution  itself. 

Nor  had  this  state  of  things  arisen  from  haste  and  inconsi- 
derateness,  or  the  want  of  due  deliberation.  Even  before  the 
confederation  was  formed,  congress  had  assumed  and  exercised 
authority  over  this  subject,  as  one  which  naturally  belonged 
to  them.  Journals  of  13th  July  and  16th  December  1775: 
January  27th,  March  8th,  April  10th,  29th,  May  27th,  June 
11th,  1776;  August  19th,  September  19th,  December  7th, 
1776.  In  the  last  mentioned  year  (1776)  they  made  war 
upon  the  Cherokees  for  committing  hostilities  on  South  Caro- 
lina. JournalsDecember  2d,  1777.  They  distinctly  asserted 
the  power  of  war  and  peace  towards  the  Indians,  and  denied 
it  to  the  states.  Journals  5th  March  1779.  In  1781  they 
sanctioned  a  negotiation  for  peace  with  the  Cherokees.  Jour- 
nals 1st  November  1781.  From  this  negotiation  proceeded 
the  treaty  of  Hopewell  (1785),  the  provisions  of  which  are  set 
out  in  the  bill.  In  1788,  congress  by  proclamation,  declared 
their  determination  to  protect  the  Cherokees,  and  if  necessary 
to  use  force  for  that  purpose.  Journals  1st  September  1788. 
In  1787  the  attention  of  congress  had  been  forcibly  and  par- 
ticularly drawn  to  the  subject  of  their  own  power.  The  states 
of  Georgia  and  North  Carolina  had  raised  a  question  about  the 
construction  of  the  articles  of  confederation  (which  were  not 
in  this  respect  altogether  free  from  obscurity);  and  Georgia  had 
actually  proceeded  to  treat  with  the  Creeks.  The  matter  was 
referred  to  a  committee,  consisting  of  a  member  from  Massa- 
chusetts, New  York,  Pennsylvania,  Delaware  and  Virginia. 
They  made  a  report  (12  Journals,  82)  on  the  3d  August  1787; 
in  which  the  question  was  fully  examined,  and  the  power  of 
congress  asserted  and  maintained.  The  clause  in  the  articles 
of  confederation,  upon  which  the  doubt  had  been  raised,  was  as 
follows,  *'  congress  shall  have  the  sole  and  exclusive  right  and 
power  of  regulating  the  trade  and  managing  all  affairs  of  the 
Indians,  not  members  of  any  of  the  states;  provided  that  the 
legislative  right  of  any  State  within  its  own  limits  be  not 
infringed  or  violated. "  Upon  this  proviso,  the  pretensions  of 
the  states  were  founded.  Whatever  may  have  been  the  merits 
of  this  controversy,  it  was  for  ever  ended  by  the  constitution 


48  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
of  the  United  States,  which  omitted  the  limitations  in  the 
articles  of  confederation,  and  gave  the  power  to  congress 
unfettered,  and  (to  use  the  language  of  the  report  before  men- 
tioned) "  indivisible."  That  this  was  purposely  and  deliber- 
ately done,  we  have  the  authority  of  Mr  Madison  in  the 
Federalist,  No.  42.  So  that  by  the  constitution  of  the  United 
States,  all  Indian  nations,  within  or  without  the  limits  of 
states,  are  put  upon  one  footing, — that  asserted  by  the  report  of 
the  committee  of  congress.  No  state  has  any  power  over 
them:  it  would  be  inconsistent  with  the  power  of  congress. 

In  what  light,  then,  must  this  constitution  be  considered  as 
regarding  the  Indian  nations?  After  the  reference  which  has 
just  been  made,  the  answer  is  plain  and  unavoidable.  In 
adopting,  without  exception,  treaties  previously  made,  it 
adopted  the  treaty  of  Hopewell,  which  was  one  of  them,  and 
immediately  in  view.  In  conferring  upon  the  president  and 
senate  the  treaty-making  power,  it  gave  to  them  the  powers 
which  had  been  exercised  by  congress  under  the  same  terms 
in  the  articles  of  confederation,  including  that  of  making 
treaties  with  the  Indians.  In  giving  to  congress  the  power 
to  regulate  trade  with  the  Indians,  it  gave  to  them  all  the 
power  which  had  been  exercised  by  congress  before,  freed 
from  the  embarrassment  of  the  obscure  proviso  which  had 
caused  some  question,  and,  therefore,  if  not  enlarged,  at  least 
rendered  more  firm  and  indisputable.  It  plainly,  purposely 
and  unequivocally  assigned  to  the  federal  jurisdiction,  in  its 
different  departments,  the  whole  subject  of  the  Indian  nations, 
as  one  which  belonged  exclusively  to  the  union,  and  not  to 
the  states;  employing  for  this  object,  in  substance,  the  clauses 
in  the  articles  of  confederation  which  had  been  found  effica- 
cious before,  and  rejecting  only  such  as  had  been  the  occasion 
of  doubt  or  embarrassment.  As  to  the  nations  themselves,  it 
regarded  them  as  they  had  been  regarded  before,  as  states, 
not  of  this  union,  and  therefore  foreign,  and  capable  of 
making;  treaties  with  the  United  States.  Whoever  will  exa- 
mine  the  report  before  adverted  to,  will  be  fully  satisfied  that 
these  were  the  views  of  the  public  men  of  that  day,  and  that 
they  were  entertained  upon  the  strongest  and  the  soundest 
reasons.  Occurrences  of  the  present  day  give  to  them  addi- 
tional strength. 


JANUARY  TERM  1831.  49 

[The  Cherokee  Naiionus.  The  State  of  Georgia.] 
Under  the  constitution,  the  subject  again  received  a  delibe- 
rate, and  peculiarly  solemn  examination;  chiefly  as  to  the 
expediency  of  the  mode  of  proceeding;  for  the  power  was  not 
questioned.  In  the  year  1790  (August  11),  President 
Washington  sent  to  the  senate  a  message  in  relation  to  the 
Cherokee  Indians,  which  concluded  with  asking  the  advice  of 
the  senate  upon  three  questions.  The  first  of  them  was 
whether  overtures  should  be  made  for  arranging;  a  new  houn- 
dary  by  treaty  with  the  Cherokees.  The  second  related  to 
the  mode  of  compensating  them  for  the  land  they  might  cede. 
The  third  was  as  follows,  "shall  the  United  States  stipulate 
solemnly  to  guaranty  the  new  boundary  which  may  be 
arranged."  The  senate  resolved  to  advise  and  consent  that 
the  president  should  at  his  discretion  cause  the  treaty  of 
Hopewell  to  be  carried  into  execution,  according  to  the 
terms  thereof,  or  enter  into  arrangements  for  a  new  boundary, 
compensating  the  Cherokees  for  the  lands  they  might  cede. 
In  answer  to  the  third  inquiry,  the  senate  came  to  the  fol- 
lowing resolution.  ''Resolved,  in  case  a  new  or  other  boun- 
dary than  that  stipulated  by  the  treaty  of  Hopewell  shall  be 
concluded  with  the  Cherokee  Indians,  that  the  senate  do  advise 
and  consent  solemnly  to  guaranty  the  same."  Under  this 
deliberate  expression  of  the  advice  and  consent  of  the  senate, 
the  treaty  of  Holston  was  made  on  the  2d  July  1791;  and 
was  duly  submitted  to  and  approved  by  ihe  senate.  It  is 
still  in  full  force,  as  a  treaty  between  tlie  United  States  on 
the  one  part  and  the  Cherokee  nation  of  Indians  on  the  other; 
with  the  solemn  guarantee  on  the  part  of  the  United  States 
which  the  senate  had  advised.  Eleven  treaties  have  since  been 
made,  the  last  of  them  in  the  year  1819,  adopting  and  con- 
tinuing the  same  guarantee.  As  to  the  state  and  condition  of 
the  Cherokees,  they  are  all  of  them  perfectly  clear,  and  espe- 
cially the  treaties  of  1817  and  1819. 

The  existence  of  the  Cherokee  nation  of  Indians,  as  a  state, 
and  a  foreign  state,  is  thus  brought  down  to  the  present 
moment.  The  evidence  of  the  public  acts  of  the  United 
States  is  conclusive.  It  is  impossible  to  question  the  authority 
to  make  these  treaties.  The  constitution  plainly  intended  to 
give  the  power  to  make  them.  This  is  no  constructive  power, 
implied  from  doubtful  clauses,  or  inferred  from  other  powers 


50  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
or  from  general  words.  The  very  case  was  within  the  view 
of  the  statesmen  who  framed  that  instrument.  They  adopted 
the  provisions  in  the  articles  of  confederation  which  had  con- 
fessedly given  the  power,  and  omitted  the  one  which  had 
thrown  a  doubt  upon  it,  for  the  very  purpose  of  cutting  off  all 
dispute  or  question.  It  is  not,  therefore,  a  construction  sup- 
ported merely,  or  even  principally,  by  a  practice  of  forty 
years  without  question;  though  such  a  practice,  concurred  in 
by  all  the  departments  of  the  government,  must  even  be 
deemed  a  venerable  authority.  The  history  of  the  constitu- 
tion, the  language  of  the  constitution  interpreted  by  its  history, 
the  known  intention  of  those  who  framed  it;  fully  justify  the 
assertion,  that  this  power  could  never,  at  any  period,  have 
been  questioned,  without  doing  flagrant  violence  to  the  known 
and  manifest  meaning  of  that  instrurtient.  There  is  not  a 
power  of  the  federal  government  more  certainly  conferred 
than  this. 

These,  then,  are  treaties  made  in  pursuance  of  the  constitu- 
tion. They  are  in  full  force.  They  stand  in  the  statute 
book,  with  all  the  sanctions  of  treaties  with  foreign  states; 
and  we  are  in  the  possession  and  enjoyment  of  the  benefits 
derived  from  them.  Can  we  under  these  circumstances  deny 
that  which  they  necessarily  import?  Can  we,  consistently 
with  any  rig>\t  rule  of  interpretation,  or  with  the  common 
obligations  of  good  faith,  call  in  question  the  character  of  the 
party,  announced  and  admitted  upon  the  face  of  the  instru- 
ment itself,  especially  when  by  so  doing  we  impair  or  take 
away  from  him  the  fetipulated  advantages  of  his  compact.  If 
it  were  morally  or  politkally  admissible,  is  it  Judicially  poss- 
ible, while  the  government  acknowledges,  as  it  continues  to 
do,  the  existence  and  binding  obligation  of  these  treaties?(a) 
Can  any  court  deny  to  them  their  natural  construction? 

The  articles  of  agreement  and  cession  between  the  United 
States  and  the  state  of  Georgia,  of  the  24lh  of  April  1802, 
are  equally  conclusive  upon  the  point  in  question,  by  the  con- 
cession of  Georgia  herself  The  United  Stales  stipulate  to 
extinguish  the  Indian  title  to  lands  within  the  state  of  Geor- 
gia, for  the  use  of  Georgia,  "  as  soon  as  the  same  can  be  peace- 

(a)  The  act  of  last  sessiou  expressly  declares  in  a  proviso  that  they  are  not  to 
be  impaired  or  questioned. 


JANUARY  TERM  1831.  51 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
ably  obtained  upon  reasonable  terms."  There  is  an  admission 
here  that  there  was  an  Indian  title;  that  it  could  only  be  extin- 
guished with  the  consent  of  the  Indian  nation;  and  that  the 
United  States  alone  had  the  power  to  extinguish  it,  because 
the  United  States  alone  had  the  power  to  make  treaties  with 
the  Indians.  The  act  of  congress  of  30th  of  March  1802, 
commonly  called  the  Indian  intercourse  act,  speaks  the  same 
language  in  all  its  provisions.  That  act  was  made  in  fulfil- 
ment of  the  obligations  of  justice  contracted  by  treaties.  It 
was  nothing  more  than  had  been  solemnly  guarantied.  The 
United  States  were  bound  to  make  such  laws,  and  they  are 
bound  to  execute  them:  a  failure  in  either  would  be  a  viola- 
tion of  the  national  faith  so  clearly  pledged.  They  are  bound 
to  respect  the  Indian  boundaries  and  rights  themselves — they 
are  bound  to  protect  them  from  encroachments  by  states,  or 
by  citizens  of  the  United  States;  because  they  have  engaged 
to  do  so,  and  have  received  the  equivalent  for  their  engage- 
ment. 

Judicial  decisions,  in  accordance  with  this  view,  are  not 
wanting.  In  Johnson  vs.  MTntosh,  8  Wheat.  543,  the  chief 
justice,  in  delivering  the  opinion  of  this  court,  assumes  the 
existence  of  the  Indian  nations  as  states,  by  ascribing  to  them 
powers,  and  capacities,  and  rights,  which  belong  only  to  that 
character.  In  page  592,  is  the  following  passage.  ''Another 
view  has  been  taken  of  this  question  which  deserves  to  be  con- 
sidered. The  title  of  the  crown,  whatever  it  might  be,  could 
be  acquired  only  by  a  conveyance  from  the  crown.  If  an  in- 
dividual might  extinguish  the  Indian  title  for  his  own  benefit, 
or,  in  other  words,  might  purchase  it,  still  he  could  acquire 
only  that  title.  Admitting  their  power  to  change  their  laws 
and  usages,  so  far  as  to  allow  an  individual  to  separate  a  por- 
tion of  their  lands  from  the  common  stock,  and  hold  it  in 
severalty,  still  it  is  a  part  of  their  territory,  and  is  held 
under  them  by  a  title  dependent  on  their  laws.  The  grant 
derives  its  efficacy  from  their  will:  and,  if  they  choose  to 
resume  it,  and  make  a  different  disposition  of  the  land,  the 
courts  of  the  United  Slates  cannot  interpose  for  the  j)rotec- 
tion  of  the  title.  The  person,  who  purchases  lands  from 
the  Indians  within  their  territory,  incoiporates  himself 
tuith  them,  so  far  as  respects  the  property  purchased;  holds 


52  SUPRExME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
their  title  under  their  protection,  and  subject  to  their 
laws.  If  they  annul  the  grunt,  we  know  of  no  tribunal 
which  can  revise  and  set  aside  the  proceeding.^^  Their  so- 
vereign power  within  their  own  territory;  their  authority  to 
make,  to  administer,  and  to  execute  their  own  laws;  to  give 
titles  and  to  resume  them,  to  do,  in  short,  what  states  or 
nations  only  can  do;  are  here  distinctly  admitted. 

In  Goodell  vs.  Jackson,  in  the  court  of  errors  in  New  York, 
the  question  was  discussed  as  to  the  character  of  the  indivi- 
duals composing  the  Indian  nations.  They  were  decided  to 
be  aliens.  If  the  subjects  of  a  state  be  aliens,  the  state  itself 
must  be  an  alien  state,  a  foreign  state. 

In  Holland  vs.  Pack,  Peck's  Reports,  151,  the  very  ques- 
tion was  directly  presented  and  directly  decided  by  the  court 
of  appeals  of  Tennessee  in  the  year  1823.  It  was  an  action 
brought  against  a  Cherokee  innkeeper,  residing  in  that  part  of 
the  nation  which  lies  within  the  limits  of  the  state  of  Ten- 
nessee, for  the  loss  of  the  goods  of  a  guest.  The  question  pre- 
sented by  the  pleadings  was,  by  what  law  the  case  was  to  be 
governed,  the  law  of  Tennessee  or  the  law  of  the  Cherokees. 
The  court  decided  that  the  latter  was  to  govern.  In  the  opi- 
nion, which  is  full  and  elaborate,  the  whole  subject  is  exam- 
ined; and  the  conclusion  pronounced  by  the  court  is,  that  the 
Cherokees  are  an  independent  nation,  with  the  exclusive  power 
of  legislation  within  their  own  territory. 

This  point,  of  the  national  character  of  the  Cherokee  In- 
dians, is  put  to  rest  by  two  of  the  treaties,  in  terms  which 
admit  neither  of  doubt  or  controversy.  The  treaty  of  the  Sth 
July  1817  (Art.  S)  makes  a  provision  for  securing  certain 
reserves  of  land  to  those  of  the  Cherokees  who  might  choose 
to  become  citizens  of  the  United  States.  This  provision  is 
referred  to  and  adopted  by  the  treaty  of  IS  19,  article  2.  It 
is  too  obvious  to  require  a  remark,  that  this  stipulation  necess- 
arily characterises  them  as  aliens,  then  in  a  state  of  alienage, 
or  of  allegiance  to  a  foreign  state,  but  capable  of  becoming 
citizens  of  the  United  States  at  their  own  election,  and  until 
that  election  sliould  so  incline  them,  of  remaining  in  the  con- 
dition in  which  they  then  were.  How  were  they  to  become 
citizens?  It  could  only  be  upon  the  terms  prescribed  by  the 
naturalization  laws  of  the  United  States,  of  renouncing  their 


JANUARY  TERM  1831.  53 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

foreign  allegiance.  How  could  they  renounce  it  if  none  such 
existed?  It  may  not  be  amiss  to  add,  that  this  provision  ap- 
plied to  individuals  and  to  reserves  of  land  within  the  limits 
of  states  of  this  union.  A  list  of  them  is  appended  to  the 
treaty  of  1819,  with  a  description  of  their  locality.  It  will  be 
there  found  that  the  greater  part  of  them  were  within  the 
limits  of  the  states. 

This  review,  upon  the  principles  heretofore  adopted  in 
judgment,  would  seem  to  be  sufficient  of  itself  for  a  court  sit- 
ting under  the  constitution  and  laws  of  the  United  States. 
But  wherever  the  inquiry  may  be  pursued  the  result  will  be 
the  same.  The  Cherokee  nation  is  a  state.  It  has  "  its  affairs 
and  interests;  it  deliberates  and  takes  resolutions  in  common; 
and  becomes  a  moral  person,  having  an  understanding  and  a 
will,  peculiar  to  itself ;  and  is  susceptible  of  obligations  and 
laws."  This  is  the  very  definition  of  a  *^«/e,  according  to 
the  most  approved  writers  on  public  law.  Grotius,  b.  1,  c.  1, 
§.  14.  B.  3,  c.  3,  §.  2.  Burlamaqui,  vol.  2,  p.  1,  c.  4, 
§.  9.  Vattel,  b.  1,  c.  1.  It  is  a  foreign  state,  for  it  is  not  a 
state  of  this  union.  It  is  no  part  of  our  body  politic.  The 
Cherokees  have  no  influence  in  our  affairs,  and  no  control 
over  our  conduct;  and  we  have  none  in  theirs,  save  what  is 
given  by  treaty,  and  that  is  by  mutual  stipulation  between  the 
entire  bodies  politic,  in  their  aggregate  capacity,  as  equal  con- 
tracting parties. 

It  is  no  objection  to  this  that  they  are  inferior  or  dependent 
allies.  A  state  is  still  a  state,  though  it  may  not  be  of  the 
highest  grade,  or  even  though  it  may  have  surrendered  some 
of  the  powers  of  sovereignty  (Vattel,  b.  1,  c.  1,  §  5  and  6): 
as  a  man  is  still  a  man,  though  mutilated  and  deprived  of  some 
of  his  limbs.  Such  an  argument,  indeed,  is  destitute  of  all 
colour  of  support,  for  it  supposes  that  by  entering  into  a 
treaty  the  very  rights  are  given  up  which  are  reserved  by  the 
treaty.     This  is  an  absurdity. 

Is  there  in  the  constitution  of  the  United  States  any  thing 
to  limit  or  alter  this  natural  and  unavoidable  construction  as 
applied  to  the  question  of  jurisdiction?  In  other  words,  is  it 
true  that  though  "foreign  states"  to  other  intents,  they  are 
not  "foreign  states"  within  the  terms  of  the  provision  for  the 
judiciary? 


54  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
The  only  conceivable  suggestion  to  the  contrary,  if  any 
there  be,  must  be  derived  from  the  third  clause  of  the  eighth 
section  of  the  first  article.  Congress  shall  have  power,  it  is 
[/  there  said,  "  to  regulate  commerce  with  foreign  nations,  and 
among  the  several  states,  and  with  the  Indian  tribes."  The 
argument  may  be,  that  what  are  here  called  "  Indian  tribes" 
are  specified,  because  they  are  not  comprehended  in  the  words 
**  foreign  nations;"  and  therefore  can  not  be  considered  as  em- 
braced by  the  words  "  foreign  states,"  in  the  third  article  of 
the  constitution.  This,  it  will  be  observed,  is  a  mere  verbal 
criticism,  which,  if  allowed  to  prove  any  thing,  would  prove 
far  too  much.  The  provisions  are  framed  for  different  pur- 
poses, and  with  different  views,  and  are  found  in  different  parts 
of  the  constitution.  The  one  relates  to  the  legislature,  the 
other  to  the  judiciary.  There  is  no  incompatibility  between 
them,  nor  is  there  any  difiiculty  at  all  in  letting  them  stand 
together,  inasmuch  as  they  do  not  belong  to  the  same  subject. 
In  what  sense  is  the  word  "tribes"  to  be  considered  as  here 
used?  Its  original  and  most  appropriate  meaning  is  a  subdi- 
vision of  a  state,  nation,  or  community,  forming  a  constituent 
part  of  it,  but  set  apart  or  distinguished  for  the  more  conve- 
nient management  of  its  affairs.  Thus,  Rome  was  divided 
into  "  tribes,"  in  the  first  instance  three,  and  finally  thirty-five. 
Athens  was  divided  into  ten  tribes.  There  were  the  twelve 
tribes  of  Israel,  forming  together  one  nation,  under  one  head, 
until  the  revolt  of  the  ten  tribes,  when  they  became  two  na- 
tions, and  so  continued  until  the  ten  were  lost.  The  constitu- 
tion cannot  have  used  the  word  in  this  sense.  We  know  of 
no  such  subdivisions  within  the  Indian  nations;  and  if  there 
had  been,  no  one  will  suppose  that  the  power  to  congress  was 
only  to  deal  with  portions  of  the  nations.  Sometimes,  it  is 
true,  this  word  is  applied  to  wandering  hordes,  who  have  no 
territory;  no  fixed  residence,  and  no  organic  structure.  But 
this  could  not  be  affirmed  of  the  Cherokee  nation.  They  had 
a  territory;  they  had  fixed  boundaries;  they  had  laws  and 
government;  they  were  already  parties  to  a  treaty  with  the 
United  States,  and  in  that  treaty  were  expressly  denominated 
a  "nation."  Whatever  might  have  been  the  habits  of  indi- 
viduals, the  nation  had  a  local  habitation,  and  sufficient  stabi- 


JANUARY  TERM  1831.  55 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
lity  to  be  treated  with  as  an  organized  community  (a).  Was  it 
meant  to  be  excluded  from  the  power  of  congress?  This  word 
"  tribes"  will  be  found  to  occur  frequently  in  the  journals  of 
the  old  congress,  and  especially  in  the  report  before  referred 
to,  of  August  1787;  where  it  is  manifestly  employed  as  synony- 
mous or  equivalent  to  "  nations."  If  it  be  more  comprehen- 
sive it  might  be  used  from  greater  caution,  in  order  to  cover  the 
whole  subject;  to  comprehend  tribes,  if  any  such  there  were, 
which  were  not  nations.  It  would  not,  therefore,  exclude 
those  which  were  nations,  but  they  would  be  embraced  by 
both  the  words.     So  it  has  been  construed  in  practice. 

But  if  this  verbal  argument  have  any  weight,  we  shall  be 
obliged  by  it  to  concede  that  wherever  it  happens  that  differ- 
ent words  are  used,  though  occurring  in  different  parts  of  the 
constitution  and  on  different  branches  of  power,  they  must 
necessarily  mean  a  different  thing.  Then  it  will  follow,  that 
*' foreign  state"  and  "foreign  nation"  are  different — that  the 
federal  judiciary  has  no  jurisdiction  in  the  case  of  a  "foreign 
nation,"  and  that  congress  has  no  power  to  regulate  com- 
merce:^; with  a  "foreign  state."  In  the  tenth  section  of 
the  first  article,  clause  second  (prohibiting  the  states  from 
entering  into  alliances),  the  words  employed  are  "  foreign 
powers."  This,  upon  the  same  principle,  would  exclude 
"  foreign  powers"  from  both  the  former  articles. 

The  same  argument  would  perhaps  take  away  the  treaty- 
making  power  with  the  Indians  from  the  United  States.  A 
treaty  cannot  well  be  made  witii  those  who,  according  to  the 
constitution,  as  thus  understood,  have  no  capacity  to  fulfil  their 
engagements,  or  even  to  be  bound  by  them. 

It  would  work  out  a  result  still  more  repugnant  to  what  was 
certainly  intended.  If  the  use  of  the  word  "tribes"  in  the 
first  article  excludes  the  application  of  the  words  "  foreign 
states"  in  the  third,  it  must  equally  exclude  the  words  "  for- 
eign powers"  in  the  section  just  referred  to  (article  first,  sec- 
tion tenth,  clause  second).  What  follows?  That  the  states 
individually  are  not  prohibited  from  making  compacts  with 

(a)  The  present  principal  town  of  the  Cherokee  nation  will  be  found  men- 
tioned in  the  earliest  records  of  congress  by  the  name  of  Chota. 


56  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
the  Indians,  because  they  are    not  "foreign  powers."     No 
one,  it  is  believed,  would  contend  for  this. 

But  has  it  ever  been  admitted  as  a  sound  rule  of  construc- 
tion, justly  applicable  to  the  constitution,  that  a  specification 
must  necessarily  restrain  the  general  words  which  precede  it, 
and  can  in  no  case  be  considered  as  merely  redundant?  There 
are  repeated  instances  in  the  same  section,  where  such  a  rule 
would  be  fatal  to  the  sense.  See  clauses  five,  ten,  thirteen,  &c. 
It  is  submitted,  however,  that  the  process  of  verbal  criti- 
cism is  not  the  correct  mode  of  dealing  with  a  constitution  of 
government,  where  the  grants  of  power  are  necessarily  made 
in  a  few  words.  It  must  be  interpreted  in  a  different  way. 
Some  weight  must  be  allowed  to  the  general  intention  and 
design  of  the  instrument.  The  judicial  power  of  the  United 
States  was  intended  to  be  coextensive  with  the  legislative  and 
executive,  so  as  to  form  a  government  complete,  within  the 
range  of  its  powers,  in  all  its  departments,  and  capable  of  inde- 
pendent existence.  Osbourn  vs.  Bank  of  the  United  States,  9 
Wheat.  818. 

The  treaty-making  power  confessedly  belongs,  exclusively, 
to  the  United  States.  Treaties  thus  made  are  declared  to 
be  the  supreme  law  of  the  land.  "  Cases  arising  under  trea- 
ties" are,  therefore,  in  express  terms  assigned  by  the  article 
under  consideration  to  the  federal  judiciary.  The  subject 
belongs  to  the  United  States  tribunals,  and  not  to  the  tribunals 
of  the  states.  Of  this,  there  can  be  no  dispute.  Why 
then  suppose  it  to  be  excluded  from  the  original  jurisdic- 
tion of  this  court,?  A  state  of  the  union  is  a  party,  and  it 
is  the  dignity  of  that  party  alone  which  entitles  the  case  from 
its  beginning  to  the  attention  of  the  highest  tribunal.  The 
character  of  the  other  party  is  in  this  respect  of  no  impor- 
tance. What  reason  can  be  assigned  for  an  exclusion  so  con- 
tradictory? Why  should  the  constitution  which  says  expressly 
that,  in  all  cases  where  a  state  is  a  party,  the  supreme  court 
shall  have  original  jurisdiction,  be  made  to  say  by  implication, 
that  in  this  case,  where  a  state  is  a  party,  it  shall  not  have 
original  jurisdiction?  To  what  jurisdiction  would  they  be 
referred.  The  same  argument  which  took  away  the  alien 
character  of  the  nation  would  equally  destroy  the  alien  cha- 
racter of  the  individuals  composing  it.     They  certainly  are 


JANUARY  TERM  1831.  67 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
not  citizens;  and  if  they  be  not  aliens,  what  are  they?     Out-   I 
laws.      Declared  outlaws,  without  a  nation,  and  without  pro-   5 
tection.     Public  law  abhors  such  a  state    of  existence.     It  is  - 
not   more  essential    in    municipal    arrangements   that  every 
thing  capable. of  ownership  should  have  a  legal  and  determi- 
nate owner,  than  it  is  in  the  great  society  of  nations  that  every 
man  should  be  bound  by  some  allegiance,  should  be  a  member 
of  some  community.     The  Cherokee  Indians  are  willing  to  be 
so.     They  are  so.     They  are  more  so  now  than  they  were  at 
any  former  period.     Guided  by  our  counsels,  aided  by  our 
efforts  (for  which  we  have  taken  much  credit  with  the  world) 
they  have  become  civilized  and  enlightened,   and  attached  to 
the  acts  of  civilized  life;  and  are  consolidating  their  advantages 
under  a  form  of  government  instituted  at  the  suggestion  of 
one    of  our  most  eminent  statesmen. (a)     The  preservation 

(a)  The  following  is  the  speech  addressed  to  them  by  Mr  Jefferson. 

My  Children,  Dej)u[iesofjheJI!herokee  Upper  Towns. 

I  have  maturely  considered  the  speeches  you  have  delivered  me,  and  will  now 
give  you  answers  to  the  several  matters  they  contain. 

You  inform  me  of  your  anxious  desires  to  engage  in  the  industrious  pursuits 
of  agriculture  and  civilized  life;  that  finding  it  impracticable  to  induce  the  nation 
at  large  to  join  in  this,  you  wish  a  line  of  separation  to  be  established  between 
the  Upper  and  Lower  Towns,  so  as  to  include  all  the  waters  of  the  Highwassee 
in  your  part;  and  that  having  thus  contracted  your  society  within  narrower  limits, 
you  propose,  within  these,  to  begin  the  establishment  of  fixed  laws  and  of  regu- 
lar government.  You  say,  that  the  Lower  Towns  are  satisfied  with  the  division 
you  propose,  and  on  these  several  matters  you  ask  my  advice  and  aid. 

With  respect  to  the  line  of  division  between  yourselves  and  the  Lower  Towns, 
it  must  rest  on  the  joint  consent  of  both  parties.  The  one  you  propose  appears 
moderate,  reasonable  and  well  defined;  we  are  willing  to  recognize  those  on 
each  side  of  that  line  as  distinct  societies,  and  if  our  aid  shall  be  necessary  to 
mark  it  more  plainly  than  nature  has  done,  you  shall  have  it.  I  think  with  you 
that  on  this  reduced  scale,  it  will  be  more  easy  for  you  to  introduce  the  regular  j 
administration  of  laws. 

In  proceeding  to  the  establishment  of  laws,  you  wish  to  adopt  them  from  ours, 
and  such  only  for  the  present  as  suit  your  present  condition;  chiefly  indeed,  those 
for  the  punishment  of  crimes  and  the  protection  of  property.  But  who  is  to  de- 
termine which  of  our  laws  suit  your  condition,  and  shall  be  in  force  with  you? 
All  of  you  being  equally  free,  no  one  has  a  right  to  say  what  shall  be  law  for  the 
others.  Our  way  is  to  put  these  questions  to  the  vote,  and  to  consider  that  as 
law  for  which  the  majority  votes — the  fool  has  as  great  a  right  to  express  his 
opinion  by  vote  as  the  wise,  because  he  is  equally  free,  and  equally  master  of 
himself.  But  as  it  would  be  inconvenient  for  all  your  men  to  meet  in  one  place, 
would  it  not  be  better  for  every  town  to  do  as  we  do:  that  is  to  say,  choose  by 
the  vote  of  the  majority  of  the  town  and  of  the  country  people  nearer  to  thai 

H 


58  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
of  their  character  as  a  state  was   essential  to  their  happiness 
and  even  to  their  existence;  it  was  essential,   too,  to  enable 
them   to  fulfil  many  of  their  treaty  obligations  towards  the 
United  State^. 

In  conclusion,  upon  this  point,  Mr  Sergeant  remarked  that  he 
would  not  be  understood  to  question  the  power  of  the  United 
States  over  the  whole  matter.  He  would  not  undertake  to  say 
what  congress  might  do.  But  until  the  power  was  plainly 
exercised,  to  the  extent  of  abrogating  the  treaties,  npon  the 
responsibility  which  belonged  to  such  a  step  j  those  treaties 
would  continue  to  be  the  law,  and  must  be  respected  and 
executed  as  such. 

2.  That  a  sufficient  "  case"  or  "  controversy"  was  presented 
to  call  for  the  exercise  of  the  judicial  power. 

What  constituted  such  a  case?  "A  case  in  law  or  equity"  is 
a  term  well  understood,  and  of  limited  signification.  It  is  "a 
controversy  between  parties  which  has  taken  a  shape  for  judi- 

than  to  any  other  town,  one,  two,  three  or  more,  according  to  the  size  of  (he 
town,  of  those  whom  each  voter  thinks  the  wisest  and  honestest  men  of  their 
place,  and  let  these  meet  together  and  agree  which  of  our  laws  suit  them.  But 
these  men  know  nothing  of  our  laws.  How  then  can  they  know  which  to  adopt? 
Let  them  associate  in  their  council  our  beloved  man  living  with  them,  Colonel 
Meigs,  and  he  will  tell  them  what  our  law  is  on  any  point  they  desire.  He  will 
inform  them  also  of  our  methods  of  doing  business  in  our  councils,  so  as  to  pre- 
serve order,  and  to  obtain  the  vote  of  every  member  fairly.  This  council  can 
make  a  law  for  giving  to  every  head  of  a  family  a  separate  parcel  of  land,  which, 
when  he  has  built  upon  and  improved,  it  shall  belong  to  him  and  his  descendants 
for  ever,  and  which  the  nation  itself  shall  have  no  right  to  sell  from  under  his 
feet.  They  will  determine  too,  what  punishment  shall  be  inflicted  for  every 
crime.  In  our  slates  generally,  we  punish  murder  only  by  death,  and  all  other 
crimes  by  solitary  confinement  in  a  prison. 

But  when  you  shall  have  adopted  laws,  who  are  to  execute  them.'  Perhaps 
it  may  be  best  to  permit  eveiy  town  and  the  settlers  in  its  neighbourhood  at- 
tached to  it,  to  select  some  of  their  best  men,  by  a  majority  of  its  voters,  to  be 
judges  in  all  differences,  and  to  execute  the  law  according  to  their  own  judgment. 
Your  council  of  representatives  will'decide  on  this,  or  such  other  mode  as  may 
best  suit  you.  I  suggest  these  things,  my  children,  for  the  consideration  of  the 
Upper  Towns  of  your  nation,  to  be  decided  on  as  they  think  best,  and  I  sincerely 
wish  you  may  succeed  in  your  laudable  endeavours  to  save  the  remains  of  your 
nation,  by  adopting  industrious  occupations  and  a  government  of  regular  laws. 
In  this  you  may  rely  on  the  counsel  and  assistance  of  the  government  of  the 
United  States.  Deliver  these  words  to  your  people  in  my  name,  and  assure 
them  of  my  friendship. 

THOMAS  JEFFERSON. 
January  9, 1809. 


JANUARY  TERM  1831.  59 

[The  Cherokee  Nation  vs.The  State  of  Georgia.] 
cial  decision. "  (Speech  of  Chief  Justice  Marshall  in  the  mat- 
ter of  Nash  alias  Robins,  note  to  Bee,  277.)  It  is  defined 
also  in  9  Wheat.  819.  "  This  clause"  (1st  clause,  2d  sect.  3d 
art.  Constitution  United  States)  "  enables  the  judicial  depart- 
ment to  receive  jurisdiction  to  the  full  extent  of  the  constitu- 
tion, laws,  and  treaties  of  the  United  States,  when  any  ques- 
tion respecting  them  shall  assume  such  a  form  that  the  judicial 
power  is  capable  of  acting  upon  it.  That  power  is  capable 
of  acting  only  when  the  subject  is  submittted  to  it  by  a  party 
who  asserts  his  rights  in  the  form  prescribed  by  law.  It  then 
becomes  a  case,  and  the  constitution  declares,  that  the  judicial 
power  shall  extend  to  all  cases  arising  under  the  constitution, 
laws,  and  treaties  of  the  United  States." 

To  make  such  a  case  a  controversy ,  there  must  be,  1.  Par- 
ties capable  of  suing  and  being  sued.  2.  A  subject  matter 
proper  for  judicial  decision. 

1.  It  could  not  be  questioned  that  here  were  such  parties. 
They  were  within  the  very  words  of  the  constitution.  That 
clause  admitted  at  the  same  time,  that  there  might  be  subjects 
of  judicial  controversy  between  such  parties;  there  is,  there- 
fore, no  presumption  from  their  character  against  the  jurisdic- 
tion. It  might  be,  that  a  question  between  the  United  States 
and  a  foreign  state,  arising  upon  a  treaty,  could  not  be  a  case 
of  judicial  cognizance;  that  it  would  necessai'ily  be  political 
or  diplomatic,  and  not  judicial.  But  a  question  with  a  state 
could  not  be  of  that  description,  because  a  state  could  have  no 
political  or  diplomatic  relations.  Const.  Art.  1,  Sect.  10.  It 
was  no  more  diplomatic  than  if  it  were  the  case  of  an  indivi- 
dual complainant.  The  questions  might  be  precisely  the 
same.  Its  being  the  case  of  a  state,  defendant,  could  make 
no  difference,  for  this  court  entertained  jurisdiction  in  equity 
of  controversies  between  states,  as  in  the  pending  case  between 
New  Jersey  and  New  York.  As  to  the  parties,  there  could 
be  no  doubt. 

2.  Was  there  a  subject  matter,  proper  for  judicial  decision.' 
That  must  depend  upon  the  nature  of  the  right  which  was 
asserted,  and  the  nature  of  the  wrong  which  was  inflicted  or 
meditated.  As  to  the  rights  of  the  complainants,  as  they 
were  here  asserted,  they  might  be  considered  for  the  present 
purpose  as  founded  entirely  upon  the  laws  of  the  United 


60  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
States;  that  is,  upon  treaties  and  upon  acts  of  congress,  which 
were  of  equal  authority.  These  rights  were  judicially  known 
to  the  court  as  part  and  parcel  of  the  laws  of  the  United  States. 
It  was  not  necessary  to  go  out  of  those  laws  for  the  pur- 
pose of  investigating  them.  They  were  not  obliged  now  to 
explore  the  original  grounds  of  right,  nor  to  question  the 
European  principle  of  discovery.  Such  as  they  appeared  upon 
the  statute  book  the  complainants  were  willing  to  consider 
them;  and  they  asked  nothing  more  than  to  have  them  en- 
forced as  they  there  appeared. 

Of  these  rights  the  Cherokees  were  in  the  actual  possession; 
with  the  knowledge  and  acquiescence  of  all  the  authorities  of 
the  United  States.  There  was  no  dispute  between  them. 
Their  claim  was  only  to  be  protected  from  disturbance  or  in- 
terference with  their  established  rights;  and  they  claimed  it 
against  those  who  were  subject  to  the  authority  of  the  laws  of 
the  United  States  and  within  their  jurisdiction,  but  did  not 
profess  to  derive  any  sanction  for  their  conduct  from  the 
United  States. 

These  rights,  it  was  further  to  be  remarked,  were  such, 
that  in  a  suit  between  the  citizens  of  the  United  States,  they 
would  undoubtedly  be  within  the  jurisdiction  of  the  laws  of 
the  United  States.  What  were  they  ?  The  treaty  of  July 
1817  (art.  5)  continued  in  force  all  former  treaties.  The 
treaty  of  February  1819  was  only  a  final  adjustment  of  the 
former.  All  the  guarantees  of  former  treaties  are  therefore  in 
full  force. 

1.  The  first  of  the  rights  admitted,  and  professed  to  be 
guarantied  and  secured  to  them,  was  the  right,  loithin  their 
own  boundary,  of  self  government.  Their  political  power  is 
abridged  by  their  own  concessions,  and  so  is  their  right  of 
property  by  conditions  annexed  to  it.  But  the  right  to  regu- 
late their  own  civil  condition  within  their  own  limits,  to  make 
and  to  execute  their  own  laws,  is  exclusive  and  absolute.  It 
is  extended  expressly  by  treaty,  as  well  as  by  the  intercourse 
act,  to  persons  going  amongst  them.  This  is  the  plain  import 
of  all  the  treaties,  as  well  as  of  the  intercourse  act.  In  the 
treaties,  means  are  employed  for  civilizing  them,  but  they  are 
proposed  in  the  way  of  advice  and  assistance,  and  not  in  the 
way  of  authority  or  command.      See  particularly  Art.   14, 


JANUARY  TERM  1831.  61 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
treaty  of  1791;  Art.  2,  treaty  of  1806;  preamble  of  treaty  of 
1817,  and  Art.  8  of  same. 

2.  The  next  was  the  right  of  property,  modified,  but  still 
exclusive  dnd  absolute  against  all  interference.  The  7node  of 
enjoying  it  was  left  to  themselves.  Whatever  it  might  be,  it 
resolved  itself  into  individual  enjoyment  as  to  its  end  and  pur- 
pose. As  against  the  United  States  and  their  citizens,  this 
right  was  sacred  and  incontestable.  It  was  acknowledged  in 
every  variety  of  way.  The  boundaries  were  fixed  by  treaty, 
and  what  was  within  them  was  acknowledged  to  be  the  land 
of  the  Cherokees.  This  was  the  scope  of  all  the  treaties. 
Treaty  of  Hopewell,  Art.  4.  Treaty  of  Holston,  Art.  7,  &c. 
The  United  States  would  not  even  assume  the  right  of  passage 
without  their  consent,  and  when  it  was  granted,  it  was  by 
treaty  in  a  limited  way,  by  a  particular  road.  Treaty  of  Hol- 
ston, Art.  5.  Treaty  of  1795,  Art.  7.  They  stipulate  against 
intrusions,  abandoning  intruders  to  the  laws  and  tribunals  of 
the  Cherokees.  Treaty  of  Hopewell,  Art.  5.  Treaty  of  Hol- 
ston, Art.  S.  They  stipulate  also  for  protection.  Treaty  of 
1798.  Art.  4. 

It  was  unnecessary  for  this  purpose  to  go  more  fully  into 
those  treaties.  They  spoke  one  language  throughout,  and 
that  was,  that  the  Cherokees  were  entitled  to  the  occupa- 
tion and  enjoyment  of  their  land  without  intrusion  or  inter- 
ference. The  same  language  was  spoken  by  the  intercourse 
act.  Indeed,  he  might  add,  that  as  yet,  it  was  not  disputed 
by  any  act  or  declaration  of  the  United  States  through  any 
official  organ  authorised  to  do  or  to  speak  on  the  subject. 
These  rights  were  absolutely  unquestioned,  and  the  obliga- 
tion to  protect  them  was  in  full  force.  The  United  States  had 
never  by  any  competent  authority  disclaimed  it.  They  do 
not  disclaim  it  now.  The  solemn  guarantee  advised  by  the 
senate  in  1790,  and  given  by  the  executive,  with  the  advice 
of  the  senate,  in  the  year  1791,  is  as  fresh  in  its  claim  upon 
the  public  faith  as  the  day  when  the  treaty  was  signed.  It  is 
true  that  the  stipulated  protection  is  not  afforded;  but  the  con- 
gress of  the  United  States  have  never  denied  the  right  to 
claim,  or  the  obligation  to  afford  it. 

3.  What  are  the  wrongs  they  complain  of.'' 

The  violation  of  these  rights,  to  the  extent  of  their  total 


62 


SUPREME  COURT. 


[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

destruction  ahd  extinction.  The  legislation  of  Georgia  pro- 
poses to  annihilate  them,  as  its  very  end  and  aim;  the  acts 
already  done  under  it  are  in  furtherance  of  that  purpose,  and 
those  which  are  further  menaced  will  be  its  consummation. 
The  laws  of  Georgia  profess  no  other  object;  they  are  effec- 
tually conceived  for  this.  If  those  laws  be  fully  executed,  there 
will  be  no  Cherokee  boundary,  no  Cherokee  nation,  no  Chero- 
kee lands,  no  Cherokee  treaties,  no  laws  of  the  United  States 
in  the  case.  They  will  all  be  swept  out  of  existence  to- 
gether, leaving  nothing  but  the  monuments  in  our  history  of 
the  enormous  injustice  that  has  been  practised  towards  a 
friendly  nation. 

These  laws  of  Georgia  operate  upon  the  individual  Chero- 
kees  as  well  as  upon  the  nation.  They  are  virtually  made 
outlaws,  neither  citizens  nor  aliens,  nor  competent  to  be  wit- 
nesses in  courts  of  justice.  They  operate  also  upon  their 
property,  and  upon  the  rights  and  privileges  declared  for 
them  by  the  laws  of  the  United  States. 

Is  not  this,  then,  a  case  or  controversy  oi  judicial  cogni- 
zance? The  bill  sets  forth  a  number  of  individual  instances 
of  the  exercise  of  the  unjust  authority.  Would  they  not, 
upon  the  complaint  of  individuals,  be  the  subject  of  judicial 
cognizance?  Would  not  the  questions  to  be  presented,  discuss- 
ed, and  decided,  be  precisely  the  same  as  they  now  are?  As 
questions  of  property,  as  personal  privileges,  or  as  corporate 
privileges,  they  are  matters  of  judgment  purely  and  strictly, 
without  any  admixture  whatever  of  political  or  diplomatic 
considerations,  and  they  have  become  a  case,  or  subject  of  a 
suit,  by  the  actual  perpetration  of  injury  and  the  menace  of 
its  repetition.  They  are  questions  upon  the  laws  of  the  United 
States,  in  suits  against  citizens  of  the  United  States;  and  if  it 
be  necessary  still  further  to  examine  the  ground  of  complaint, 
it  will  be  found  that  it  is  one  of  every  day  judicial  cognizance, 
namely,  that  the  laws  of  Georgia  are  unconstitutional  and 
void. 

Is  not  the  character  of  the  aggregate  the  same  as  that  of  the 
particulars  of  which  it  is  composed?  Is  there  any  thing  in 
the  process  of  aggregation  to  alter  it?  The  constitution  of 
the  United  States  gives  no  colour  to  such  a  distinction.  It 
applies  the  same  description  of  case  or  controversy  to  bodies 


JANUARY  TERM  1831.  63 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
and  to  individuals.  Judicial  decisions  give  it  no  countenance, 
but  the  contrary.  Jurisdiction  is  entertained  of  suits  between 
states,  as  in  the  instance  now  pending.  In  the  case  between 
states  there  must  always  be  individual  interests  involved  with 
those  of  the  state.  Jurisdiction  is  entertained  of  suits  by  cor- 
porate bodies.  Osburne  vs.  Bank  of  the  United  States,  9 
Wheaton,  733. 

To  what  forum  (of  those  belonging  to  the  United  States) 
the  resort  is  to  be  had,  depends  upon  the  parties.  The  fede- 
ral jurisdiction  depends  upon  the  nature  of  the  case  or  ques- 
tion. If  that  be  such,  that  it  might  be  here  by  an  individual, 
under  the  twenty-fifth  section  of  the  judiciary  act,  by  appeal; 
it  may  be  brought  here  originally  by  a  state. 

It  might  be  that,  in  fact,  the  present  was  the  only  mode  in 
which  the  protection  of  the  United  States  judiciary  could  be 
obtained,  or  in  which  it  could  be  called  upon  to  vindicate  the 
majesty  of  the  laws  and  treaties.  The  nature  of  the  Chero- 
kee institutions  and  polity,  as  to  the  tenure  of  land,  presented  a 
difficulty  on  the  one  side.  The  determination  of  the  authori- 
ties and  tribunals  of  the  state  of  Georgia  not  to  permit  a  suit 
to  reach  a  stage  where  a  writ  of  error  could  be  made  availa- 
ble, was  at  present  an  insuperable  difficulty  on  the  other.  If 
redress  ?ould  not  be  afforded  in  the  mode  now  proposed,  they 
might  all,  like  Tassels,  suffer  final  and  irreparable  infliction 
while  waiting  for  the  time  of  hearing  before  this  court. 

The  complainants,  then,  come  here  upon  the  ground  of  the 
violation  of  a  legal  right,  and  that,  he  submitted,  was  a  case  or 
controversy.  They  do  not  present  an  abstract  question. 
They  do  not  present  a  political  question.  They  do  not  come 
to  demand  in  general  terms  the  fulfilment  of  a  treaty,  nor  to 
ask  this  court  to  enforce  the  execution  of  an  active  article. 
They  do  not  come  to  claim  any  thing  adversely  to  the  United 
States,  nor  to  ask  this  court  to  settle  questions  between  the 
high  contracting  parties.  They  ask  for  redress  and  protec- 
tion against  wrongdoers  in  the  accustomed  legal  way,  and  they 
vouch  the  treaties  as  the  evidence  of  their  rights. 

4.  Is  such  a  case  presented  by  the  bill  as  entitles  the  com- 
plainants to  the  specific  remedy  of  injunction.  For  the  pur- 
pose of  this  inquiry,  in  its  present  stage,  all  the  averments  of 
the  bill  are  to  be  taken  to  be  true. 


64  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  Stale  of  Georgia.] 
An  injunction  is  the  process  of  equity  to  restrain,  where  re> 
straint  is  necessary,  to  prevent  irreparable  mischief;  for  which 
there  is  no  adequate  redress  at  law.  Eden  on  Injunctions,  1, 
209.  It  is  granted  to  hold  a  fund,  until  a  decision  can  be  had 
of  a  claim  upon  it.  State  of  Georgia  vs.  Brailsford,  2  Dal- 
las, 402. 

In  this  court  there  is  a  decision  directly  applicable.  An  in- 
junction may  be  issued  to  restrain  a  person  who  is  an  officer 
of  a  state  from  performing  an  act  enjoined  by  an  unconstitu- 
tional law  of  the  state.  Osburne  vs.  Bank  of  the  United  States, 
9  Wheaton,  733.  Mr  Sergeant  referred  particularly  to  the 
argument  of  counsel,  748,  and  the  opinion  of  the  court  by  the 
chief  justice,  838,  9.  This  case,  in  the  argument  and  deci- 
sion, was  full  to  the  present  purpose,  and  was  an  adequate  and 
sufficient  authority  for  the  injunction  in  the  present  case.  The 
subject  of  complaint  was  the  same — an  unconstitutional  law. 
The  object  was  the  same — to  restrain  its  execution.  The 
state  of  things,  calling  for  relief,  was  the  same,  except  that  here 
the  threatened  danger  was  far  greater  and  more  urgent.  Here, 
as  there,  the  property,  the  franchises,  rights  and  privileges  of 
the  complainants  were  menaced. 

Perhaps  it  might  be  suggested  that  the  complaint  related  to 
matters  out  of  the  United  States,  but  within  the  Indian  na- 
tion, and  therefore  beyond  the  limits  of  the  jurisdiction  of 
the  court.  It  was  not  necessary  to  examine  very  particularly 
the  foundation  in  fact  of  such  a  suggestion.  Among  the  acts 
stated,  however,  it  would  be  remarked,  was  that  of  drawing 
the  complainants  to  tribunals  within  the  United  States,  to 
which  they  were  not  amenable.  But,  independently  of  this, 
there  was  a  very  satisfactory  answer.  A  court  of  equity  does 
not  regard  the  situation  of  the  subject  matter  in  dispute,  but 
considers  only  the  equities  arising  from  the  parties.  It  has 
enjoined  a  party  from  proceeding  in  a  foreign  court.  Eden, 
101,  2,  3.  Wharton  vs.  May,  5  Ves.  27.  Upon  the  same 
point  there  is'a  clear  authority  in  this  court.  In  Massie  vs. 
Watts,  6  Cranch,  148,  it  was  decided,  that  a  court  of  equity 
has  jurisdiction,  in  personam,  in  cases  involving  trust,  con- 
tract, or  fraud,  wherever  the  person  of  the  defendant  is 
even  casually  to  be  found  within  its  jurisdiction;  although 
it  may  be  unable  to  enforce  its  decree  in  rem,   tlie  property 


JANUARY  TERM  1831.  65 

[The  Cherokee  Nation  ws.  The  State  of  Georgia.] 
in  controversy  being  out  of  its  jurisdiction.     This  was  a  case 
involving  contract. 

He  deemed  it  unnecessary  to  trouble  the  court  further  upon 
this  point. 

Mr  Wirt  spoke  to  the  following  effect: 

The  complainants  and  their  counsel  are  fully  aware  of 
the  delicacy  of  this  question.  They  feel  all  the  difficulties 
and  embarrassments,  judicial  and  political,  which  surround 
it.  They  have  thought  it  their  duty,  therefore,  to  weigh 
the  measure  well,  in  all  its  aspects,  in  advance.  They  have 
not  come  hither  rashly  and  unadvisedly.  The  complain- 
ants have  not  been  permitted  to  proceed  on  the  opinion  of 
any  single  individual  of  the  profession.  They  have  been 
required  to  consult,  and  they  have  accordingly  consulted, 
several  of  the  most  enlightened  and  eminent  jurists  of  this 
country,  residing  in  different  and  distant  parts  of  the  con- 
tinent; and  it  was  not  until  the  perfect  concurrence  of  them 
all  had  been  ascertained,  on  all  the  points  involved  in  this  mo- 
tion, that  the  resolution  was  taken  to  bring  it  before  the  court. 
These  jurists  unite  in  the  opinion  that  the  laws  of  Georgia, 
here  in  question,  are  unconstitutional,  as  being  repugnant  to 
the  constitution,  laws,  and  treaties  of  the*  United  States;  that 
this  court  has  perfect  jurisdiction  on  the  subject,  and  may 
award  the  injunction  which  is  prayed;  and  that  in  the  exer- 
cise of  this  jurisdiction  they  stand,  of  right  and  duty,  free  of 
all  control  or  influence  from  any  other  department  of  the 
government.  With  such  a  unanimity  of  opinion,  no  other 
course  of  duty  remained  for  us  but  to  bring  this  subject  before 
the  court.  The  fact  of  this  previous  consultation  is  mentioned 
with  no  weak  expectation  that  it  will  influence  the  decision  of 
this  court.  We  know  too  well  the  character  of  this  tribunal, 
to  entertain  any  such  vain  and  idle  expectation.  We.  mention 
it  to  acquit  ourselves  of  all  rashness  and  inconsiderateness  in 
taking  this  step:  to  satisfy  your  honours  that  we  know  too 
well  what  is  due  to  our  country  and  to  this  high  tribunal,  to 
have  been  guilty  of  the  levity  and  folly  of  acting  on  this 
solemn  subject  as  on  a  professional  matter  of  every  day's  oc- 
currence. Even  after  all  this  precaution;  all  this  previous 
deliberation  and  consultation,  we  approach  the  subject  with 
I 


66  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
great  anxiety;  for  we  perceive,  and  it  would  be  a  vain  attempt 
to  disguise  it,  the  delicate  and   paiuful   situation  in  which  the 
motion  cannot  fail  to  place  this  honourable  court. 

We  say  nothing  of  our  own  responsibility  on  the  occasion. 
This  we  are  content  to  bear.  But  for  the  sake  of  the  court,  if 
we  could  have  perceived  any  other  course  of  moral  or  profess- 
ional conduct  that  remained  for  us,  than  to  do  our  duty  and  to 
leave  the  issue  to  Providence,  we  should  not  have  troubled 
your  honours  with  this  motion.  It  is  best,  however,  that  the 
question  should  be  decided  and  put  to  rest;  for  so  long  as  the 
complainants  shall  be  instructed  that  they  have  relief  here, 
they  cannot  rest  contented  until  the  experiment  shall  be  made. 
If  your  honours  believe  that  you  can  give  them  relief  and 
shall  give  it,  we  have  a  firm  belief  that  you  will  be  sustained 
by  the  moral  power  of  the  American  community,  and  that  all 
doubt  and  resistance  will  disappear.  If,  on  the  other  hand, 
you  shall  decide  that  you  have  not  the  jurisdiction  which  we 
claim;  however  much  we  must  regret  it,  we  shall  bow  with 
respect  to  your  decision,  and  the  complainants  will  learn  that 
they  must  look  to  some  other  quarter  for  the  redress  of  their 
grievances;  though  to  what  other  quarter  on  this  earth  they 
can  look,  with  any  shadow  of  hope,  God  only  knows.  They 
have  not  come  to  you,  in  the  first  instance,  with  their  com- 
plaints. They  have  tried  the  quarter  from  which  relief  was 
most  naturally  to  have  been  expected;  the  quarter  to  which 
their  past  experience  had  taught  them  to  look  with  confidence, 
and  to  which  they  have  never  looked  in  vain  until  within  the 
last  two  years.  They  have  tried  that  quarter,  and  they  have 
failed.  They  have  come  to  you  now;  because  without  your 
aid  they  have  found,  as  they  allege  in  their  bill,  that  they  are 
wholly  remediless. 

May  it  please  your  honours,  this  ancient  people,  the  Chero- 
kee nation,  a  nation  far  more  ancient  than  ourselves,  and,  in  all 
probability  far  more  ancient  than  the  mixed  Saxon  and  Nor- 
man race  that  people  the  land  of  our  fathers,  present  them- 
selves to  you  as  a  separate,  sovereign  state.  They  complain 
that  a  state  of  this  union  has  invaded  their  rights  of  person 
and  of  property,  by  a  species  of  legislative  warfare,  in  viola- 
tion of  the  treaties,  the  constitution,  and  the  laws  of  the 
United  States. 


JANUARY  TERM  1831.  ,  67 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
They  ask  a  subpcena  against  this  state,  to  call  her  to  judg- 
ment before  you.  They  ask  an  injunction,  pendente  lite,  to 
restrain  her  from  executing  her  unconstitutional  laws  within 
the  Cherokee  territory:  and  if,  on  the  final  hearing,  you  shall 
adjudge  those  laws-to  be  unconstitutional,  they  ask  a.  perpetual 
injunction  to  quiet  them  in  the  possession  and  enjoyment  of 
their  treaty  rights. 

Does  the  judicial  power  of  the  United  States  extend  to  this 
subject? 

The  constitution  declares  that  "  the  judicial  power  shall 
extend  to  all  cases  in  laiv  and  equity  arising  under  this  con- 
stit^ition,  the  laws  of  the  United  States,  and  treaties  rnade, 
or  which  shall  be  made,  under  their  authority.^' 

Thus  the  judicial  power  of  the  United  States  covers  the 
whole  field  of  action  of  the  federal  government:  not  to  inter- 
fere with  the  operations  of  other  departments,  but  to  settle 
all  cases  in  law  and  equity  arising  out  of  those  operations. 
The  policy  of  the  constitution  is  manifest.  It  was  to  give  to  the 
federal  government  all  the  powers  necessary  to  its  own  inde- 
pendent action,  and  the  continuance  of  its  existence;  so  that 
it  might  move,  of  itself,  throughout  the  whole  of  its  own  ap- 
propriate sphere,  and  execute  all  the  objects  entrusted  to  it, 
by  its  own  energies,  instead  of  having  its  movements  impeded 
or  delayed  by  being  made  dependent  on  the  judicial  coopera- 
tion of  any  other  system.  Now  this  cooperation  might  be 
refused.  It  was  foreseen  that  jealousies  might  arise,  as  they 
have  arisen,  and  that  the  success  of  this  great  political  experi- 
ment might  be  frustrated  by  the  refusal  of  the  states  to  lend 
their  assistance  to  its  measures.  There  were  other  reasons  for 
this  grant  of  judicial  power  coextensive  with  the  whole  field 
of  federal  action.  The  federal  government  is  the  government 
of  the  whole  nation,  united  as  one  nation,  for  the  attainment 
of  great  public  ends.  Among  these  ends  is  the  maintenance 
of  peace  with  foreign  nations;  hence  the  whole  intercourse 
with  foreign  nations  is  taken  from  the  states  and  confided  to 
the  federal  government.  But  it  would  be  in  vain  that  the 
constitution  has  spoken,  that  congress  has  the  power  of  making 
laws,  and  the  president  and  senate  the  power  of  making  trea- 
ties to  regulate  this  intercourse;  unless  there  was  a  coordinate 
judiciary  of  coextensive  power,  to  give  a  uniform  construction 


68  SUPREME  COURT. 

[The  Cherokee  Natioa  vs.  The  Slate  of  Georgia.] 
to  these  laws  and  treaties  by  the  determination  of  all  questions 
in  law  and  equity  arising  under  them.  This  uniformity 
of  construction  could  be  secured  in  no  other  way  than  by  con- 
fiding the  ultimate  decision  to  the  supreme  court  of  the  na- 
tion. It  is  but  a  shallow  question  to  ask  whether  the  courts 
of  the  states  could  not  be  trusted  with  these  questions?  The 
negative  answer  to  it  implies  no  reflection  either  on  the  learn- 
ing or  patriotism  of  the  state  courts.  Courts  equally  learned 
and  patriotic  are  continually  differing  in  opinion  on  the  same 
questions.  We"  see  it  every  day.  And  the  consequence  of 
referring  these  questions  to  the  courts  of  the  states  would 
naturally  be,  that  we  should  have  as  many  different  opinions  on 
the  constitution,  treaties,  and  laws  of  the  United  States  as 
there  are  states  in  the  union,  and  all  those  with  equal  claims 
to  learning  and  patriotism.  How  should  we  stand  with  foreign 
nations  under  such  a  judicial  administration  of  our  laws  and 
treaties,  involving  the  rights  of  their  citizens  and  subjects. 
It  is  manifest  that  the  federal  government  would  be  perpetually 
involved  in  foreign  broils,  against  which  it  had  no  means  of 
guarding.  The  only  safe  and  efficient  depository  of  the  judi- 
cial power  of  the  United  States  is,  therefore,  that  which  the 
constitution  has  ordained; — the  courts  of  the  union,  acting^un- 
der  the  supervision  and  correction  of  the  supreme  court  of  the 
United  States.  These  principles  are  familiar  here,  and  require 
only  to  be  understood  to  be  approved  every  where. 

But  although  the  constitution  has  declared  that  the  judicial 
power  of  the  United  States  shall  extend  to  all  cases  in  law 
and  equity  arising  under  the  constitution,  laws,  and  treaties 
of  the  United  States;  it  has  been  said,  that  it  remained  for 
congress  so  to  extend  it  by  express  legislation,  and  that  con- 
gress has  not  communicated  to  the  courts  all  the  power  which 
the  constitution  authorised  that  body  to  communicate. 

This  is  true  with  regard  to  those  courts  which  congress  had 
the  power  to  ordain  and  appoint,  and  to  clothe  with  jurisdic- 
tion. The  constitution  declares  that '' the  judicial  power  of 
the  United  States  shall  be  vested  in  one  supreme  court,  and  in 
such  inferior  courts  as  the  congress  may  from  time  to  time 
advise  and  appoint.'^  Congress  has  ordained  and  appointed 
such  inferior  courts,  called  circuit  and  district  courts;  and  has 
vested  these  courts  with  certain  portions  of  the  judicial  power 


JANUARY  TERM  1831.  69 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
of  the  United  States.  With  regard  to  these  courts,  they  can 
exercise  no  other  portion  of  this  power  than  that  which  con- 
gress has  thought  proper  to  vest  in  them.  But  the  supreme 
court  is  on  a  different  footing.  For  it  was  created,  not  by 
congress,  but  by  the  constitution  itself.  The  supreme  court 
of  the  United  States  is  therefore  a  constitutional  court.  It 
was  called  into  being,  not  by  congress,  but  by  the  constitution; 
and  it  takes  its  original  jurisdiction  from  that  instrument,  and 
not  from  any  grant  of  congress.  Congress  has  no  power  either 
to  enlarge  or  to  diminish  its  jurisdiction.  Such  has  been  the 
decision  of  this  court(«). 

This  jurisdiction  extends  to  all  cases,  i?i  law  and  equity, 
arising  under  the  constitution,  laws  and  treaties  of  the 
United  States.  It  has  no  other  limit,  than  that  which  arises 
from  the  character  of  the  parties.  The  constitution  declares 
that  in  all  cases  in  which  a  state  shall  be  a  party,  the  supreme 
court  shall  have  original  jurisdiction;  and  the  same  instru- 
ment, as  narrowed  by  the  eleventli  amendment,  still  declares 
that  a  state  may  be  a  party  when  called  before  the  supreme 
court  by  another  state  or  by  a  foreign  state. 

Here  a  state  is  a  partj^,  the  state  of  Georgia.  There  is  a 
proper  defendant,  therefore,  to  form  the  original  jurisdiction 
of  this  court.  This  defendant,  it  is  true,  has  not  been  called 
before  this  court  by  any  other  state  of  the  union:  but  it  has 
been  called  here  by  the  Cherokee  nation;  which,  though  not 
a  state  of  the  union,  is,  in  the  sense  of  the  constitution,  a  fo- 
reign state;  since  those  who  compose  it  owe  no  allegiance  to 
the  United  States,  nor  to  any  state  of  the  union,  nor  to  any 
other  foreign  prince,  potentate  or  state,  but  to  their  own  con- 
stitution and  laws  only;  and  since,  they  have  been  constantly 
recognized,  and  by  the  numerous  treaties  now  in  force  still 
stand  recognized  as  a  foreign  state  by  the  government  of  the 
United  States.  This,  however,  we  are  sensible  is  the  very 
knot  of  the  controversy,  and  it  requires  to  be  more  deliberately 
and  carefully  untied.  Let  us  resolve  the  question  into  its 
elements,  and  inquire, 

1.  Whether  the  Cherokee  nation  be  a  state? 

(a)  Marbury  vs.  Madison,  1  Cranch,  137, 1  Peters's  Condens.  Rep.  267.  Co- 
hens vs.  Virginia,  6  Wlieaton,  399.    Osburn  vs.  United  States,  9  Wheaton,  820 


70  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
2.  Whether  it  be  a  foreign  state  in  the  sense  of  the  con- 
stitution. 

1.  Is  it  a  state?  What  is  a  state?  Vattel  says,  ^'nations 
or  states  are  bodies  politic,  societies  of  men  united  together 
to  procure  their  natural  safety  and  advantage  by  means  of 
their  union." 

"  Such  a  society,"  he  continues,  "  has  its  affairs  and  interests, 
it  deliberates  and  takes  resolutions  in  common,  and  thus 
becomes  a  moral  person,  having  an  understanding  and  a  will 
peculiar  to  itself,  and  is  susceptible  of  obligations  and  laws." 
Preliminary  remarks,  sect.  1  and  2. 

Again,  he  says,  <*  a  nation  or  a  state  is,  as  has  been  said 
at  the  beginning  of  this  work,  a  body  politic  or  a  society  of 
men  united  together,  to  promote  their  mutual  safety  and  ad- 
vantage by  means  of  their  union. 

"  From  the  very  design  that  induces  a  number  of  men  to 
form  a  society  that  has  its  common  interests,  and  ought  to  act 
in  concert,  it  is  necessary  that  there  should  be  established  a 
public  authority/  to  order  and  direct  what  ought  to  be  done 
by  each  in  relation  to  the  end  of  the  association.  This  poli- 
tical authority/  is  the  sovereignty,  and  he  or  they  who  are 
invested  with  it  are  the  sovereign. 

''It  is  evident  from  the  very  act  of  the  civil  or  political 
•association,  that  each  citizen  subjects  himself  to  the  authority 
of  the  entire  body  in  every  thing  that  relates  to  the  common 
welfare.  The  authority  of  all  or  each  member,  therefore, 
essentially  belongs  to  the  body  politic  or  to  the  state;  but  the 
exercise  of  that  authority  may  be  placed  in  different  hands, 
according  as  the  society  shall  ordain."  Vattel,  B.  1,  c.  1,  s. 
1  and  2. 

Carry  this  definition  to  the  Cherokee  nation.  Is  it  not  a 
body  politic  or  society  of  men  united  together  to  promote 
their  mutual  safety  and  advantage  by  means  of  their 
union?  Has  it  not  common  interests;  does  it  not  act  in 
concert;  is  there  not  a  public  authority  established  among 
them,  to  order  and  direct  what  ought  to  be  done  by  each  in 
relation  to  the  end  of  the  association?  On  this  motion,  the 
allegations  of  the  bill,  supported  as  it  is  by  the  usual  affidavits 
and  vouchers,  must  be  taken  as  true.  And  the  bill  affirms 
(a  fact,  indeed,  which  we  all  know  to  be  true)  that  the  Cherokee 


JANUARY  TERM  1831.  71 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
nation  has  a  constitution  framed  on  the  model  of  our  own; 
that  the  political  society  is  divided,  like  ours,  into  three  sepa- 
rate departments,  legislative,  judicial  and  executive;  that  laws 
are  made,  expounded,  administered  and  enforced,  as  among 
ourselves;  that  there  is  a  public  authority  established  among 
them,  to  consult  and  provide  for  the  common  interests  and 
to  order  and  direct  lohat  ought  to  be  done  by  each  in  rela- 
tion to  the  end  of  the  association,  the  common  good  of  the 
whole.  It  meets  Vattel's  definition  of  a  state,  then,  at  any 
point,  as  well  as  the  definition  of  any  other  writer  who  has 
written  on  the  law  of  nations.  According  to  all  these  writers, 
it  is  a  sovereign  state,  and  belongs  to  the  common  family  of 
sovereign  nations.  G-rotius,  B.  1,  c.  1,  §  14.  2  Burlemaqui, 
Part  1,  ch.  iv.  §  9.     Martens,  B.  1,  c.  1,  §  1. 

It  is  the  right  of  self-government  lohich  is  the  test  of  so- 
vereignty. "  Every  nation  that  governs  itself,"  says  Vattel, 
"  in  what  form  soever,  without  any  dependence  on  foreign 
power,  is  a  sovereign  state.  Its  rights  are  naturally  the  same 
as  those  of  any  other  state.  Such  are  moral  persons  who  live 
together  in  a  natural  society  under  the  law  of  nations.  To 
give  a  nation  a  right  to  make  an  immediate  figure  in  this  grand 
society,  it  is  sufficient  if  it  be  really  sovereign  and  independ- 
ent; that  is,  it  must  govern  itself  by  its  oiun  authority  and 
laws."  Id.  ib.  §  4.  By  this  authority  the  Cherokee  nation  is 
a  sovereign  state,  a  natural  society  under  the  law  of  na- 
tions: since  its  right  to  govern  itself  according  to  its  own 
pleasure  has  never  been  disputed,  until  this  pretension  which 
has  been  recently  set  up  by  the  state  of  Georgia;  and  the  rec- 
titude of  which  is  here  in  question. 

It  is  true  that  the  Cherokee  nation  has,  by  its  own  volun- 
tary treaties,  placed  ii?,G\i  under  the  protection  of  the  United 
States;  has  stipulated  that  the  United  States  may  regulate  its 
trade,  not  among  the  members  of  its  own  community,  but 
with  the  white  inhabitants  around  them;  and  it  has  farther 
contracted  that  it  will  not  treat  with  any  other  state  or  foreign 
state.  Do  these  stipulatiotis  destroy  its  political  character 
as  a  sovereign  state? 

Vattel  says,  '«  wc  ought,  therefore,  to  reckon  in  the  num- 
ber of  those  sovereigns,  those  states  that  have  bound  them- 
selves to  another  more  powerful,  by  an  unequal  alliance,  in 


72  SUPREME  COURT, 

LThe  Cherokee  Nation  vs.  The  State  of  Georgia.] 
which,  as  Aristotle  says,  to  the  more  powerful  is  given  mpre 
power,  and  to  the  weaker  more  assistance. 

''The  conditions  of  these  unequal  alliances  may  be  zVi- 
jinitely  varied.  But  whatever  they  are,  provided  the  in- 
ferior ally  receives  to  itself  the  sovereignty,  or  the  right  of 
goveriiing  its  own  body,  it  ought  to  be  considered  as  an 
independent  state,  that  keeps  up  correspondence  with  others 
under  the  authority  of  the  law  of  nations. 

"  Consequently,  a  weak  state  that,  in  order  to  provide  for 
itssafety,  places  itself  under  the  protection  of  a  more  power- 
ful one,  and,  from  gratitude,  enters  into  engagements  to  per- 
form several  offices  equivalent  to  that  protection,  without  in 
the  least  stripping  itself  of  the  right  of  government  and  sove- 
reignty; that  state,  I  say,  does  not  cease,  on  this  account,  to 
be  placed  among  the  sovereigns  who  acknowledge  no  other  law 
than  that  of  nations."     Id.  ib.  s.  5  and  6.     Martens,  b.  1,  c. 

Let  it  be  borne  in  mind,  that  the  precise  question  now /be- 
fore us  is,  whether  the  Cherokee  nation  be  a  state,  or  whether 
it  has  ceased  to  be  such  on  account  of  the  treaty  stipulations 
to  which  I  have  just  adverted.  Let  us  see  how  far  the  same 
stipulations  have  been  considered  as  producing  this  annihilat- 
ing effect  on  other  states. 

Each  state  of  this  union  has  placed  itself  under  the  protec- 
tion of  the  United  States;  it  has  stipulated  that  the  United 
States  shall  regulate  its  trade  and  intercourse  not  only  with 
the  other  states  but  with  foreign  nations;  it  has  stipulated  far- 
ther, that  it  ^vill  not  enter  into  any  treaty,  alliance,  or  con- 
V  '  federation,  nor  into  any  agreement  or  compact  with  another 

state,  or  with  a  foreign  power,  without  the  consent  of  con- 
gress. Stipulations  of  a  like  kind  are  supposed  to  have  de- 
stroyed the  political  existence  of  the  Cherokee  state,  as  a 
state:  have  they  destroyed  the  political  existence  of  the  seve- 
ral states  of  the  union  as  states,  or  even  as  sovereign  states  ? 
Nay,  the  states  of  this  union  have  gone  much  farther.  They 
have  formed  themselves  into  a  confederacy  under  the  name  of 
the  United  States.  They  have  instituted  a  government  of  the 
United  States,  with  power  to  legislate  on  a  variety  of  subjects 
over  the  states;  to  lay  imposts  on  their  trade  and  direct  taxes 
on  their  property;  to  malie  war  and  peace  for  them;  to  coin 


JANUARY  TERM  1831.  73 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
money  for  them;  to  borrow  money  on  their  credit;  to  institute 
courts  among  them;  to  declare  war,  and  make  peace  for  them; 
and  on  all  the  subjects  on  which  the  federal  goverment  are 
authorized  to  act,  they  have  declared  that  the  power  of  the 
latter  shall  be  supreme,  any  thing  in  the  constitution  or  laws 
of  any  state  to  the  contrary  notwithstanding.  Have  these 
large  grants  of  power  to  the  federal  government  <ie,s^roye(/ the 
political  existence  of  the  states  aft  states?  Has  it  destroyed 
their  separate  sovereignty?  It  has  so  far  impaired  it;  but 
has  it  destroyed  it .''  Has  it  destroyed  the  right  of  self  go- 
vernment within  themselves?  Has  it  authorised  any  other 
state  to  consider  them  as  degraded  by  these  concessions  of 
power  from  the  rank  and  character  of  states,  and  to  interfere, 
on  this  ground,  with  their  own  right  of  self  government? 
Have  they  ceased  to  be  sovereign  and  independent  states? 
Surely  not.  "  In  short,"  says  Vattel,  "  several  sovereign 
and  independent  states  may  unite  themselves  together  by  a  per- 
petual confederacy,  without  each  in  particular  ceasing  to  be  a 
perfect  state.  They  aliform  together  a  federal  republic;  the 
deliberations  in  common  will  offer  no  violence  to  the  sove- 
reignty of  each  member,  though  they  may,  in  certain  re- 
spects, put  some  constraint  on  the  exercise  of  it,  in  virtue 
of  voluntary  engagements.  A  person  does  not  cease  to  be 
free  and  independent  when  he  is  obliged  to  fulfil  the  engage- 
ments into  which  he  has  very  unwillingly  entered.  Vattel, 
B.  1,  c.  1,  §  10. 

Thus  we  see  that  the  several  states  of  this  union,  although 
they  have  entered  into  a  confederacy  by  which  they  have  re- 
signed to  the  United  States  several  of  their  attributes  of  so- 
vereignty, have  not  still  relinquished  their  political  existence 
as  states,  but  are,  still,  not  only  states,  but  sovereign  and 
independent  states;  sovereign  in  every  thing  but  in  the  par- 
ticulars in  which  they  have  voluntarily  imposed  a  restraiyit 
on  themselves,  in  consideration  of  the  greater  benefits  which 
they  derive  from  the  union. 

Vattel  distinguishes  between  these  «>o/w7i/ary  engagements 
and  conditions  forced  upon  a  state  by  right  of  conquest.  '/ 
In  the  case  of  conquest  the  victor  dictates  the  terms  on  which 
he  will  accept  the  submission  of  the  vanquished.  He  incor- 
porates them  with  the  rest  of  his  subjects,  and  governs  them 
K 


74  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
by  the  same  laws:  or  he  permits  them  still  to  retain  their  lands 
and  to  use  their  own  laws  dnring  his  pleasure.  But  by  force 
of  the  conquest  they  are  his  subjects,  their  country  is  his,  and 
they  are  but  his  tenants  at  ivill,  both  of  their  lands  and  their 
laws:  he  may  resume  the  former  and  displace  the  latter  at 
pleasure,  without  any  imputation  of  injustice.  Having,  there- 
fore, fallen  under  foreign  dominion  by  right  of  conquest, 
they  have  lost  the  character  of  states.  Such  are  the  different 
effects  on  the  political  character  of  a  state  between  engage- 
ments voluntarily  assumed,  and  obligations  forced  upon 
them  by  right  of  conquest. 

Let  us  bring  these  principles  to  the  case  of  the  Cherokee 
nation.  The  bill  affirms  that  they  were  never  conquered; 
and  this  allegation  must  be  taken  to  be  true,  unless  there  be 
some  historical  fact  known  to  the  court  which  disproves  it. 
But  there  is  no  such  fact.  They  never  were  conquered,  in 
the  political  sense  of  this  term',  either  by  Great  Britain,  by 
the  states,  or  by  the  United  States.  They  have  had  wars 
with  these  powers;  have  been,  perhaps,  sometimes  worsted  in 
battle,  and  at  others  victorious.  But  as  a  nation  they  never 
bowed  their  necks  to  the  yoke  of  a  conqueror.  These  wars 
have  been  terminated  by  treaties,  and  these  treaties  themselves 
furnish  the  evidence  that  this  nation  has  never  been  conquered. 
The  conqueror  does  not  treat  with  the  conquered  on  the  foot- 
ing of  equality.  He  dictates  the  terms  on  which  he  will 
receive  their  submission.  He  has  over  them  the  power  of 
life  and  death;  and  he  tells  them  on  what  terms  he  will  permit 
them  to  live.  He  does  not  ask  their  assent;  he  exacts  their 
obedience.  They  are  at  his  feet  in  the  posture  of  submission; 
and  he  strikes  off  their  heads,  or  bids  them  live  his  subjects 
and  obey  implicitly,  on  every  occasion,  his  high  behests. 
But  look  at  the  treaties  between  the  United  States  and  the 
Cherokee  nation.  Are  they  marked  with  the  characters  of 
conquest?  On  the  contrary  are  they  not  marked  with  all  the 
characters  which  we  know  to  be  historically  true  of  the  trans- 
actions of  nations  equally  tired  of  war  and  equally  willing  to  ar- 
range the  terms  of  peace,  in  the  admitted  capacity  of  sovereigns. 
In  the  war  of  our  revolution,  the  Cherokees,  in  com- 
mon with  other  Indian  nations,  had  joined  the  British  arms, 
and  we  had  found  them  formidable  enemies.     We  all  know 


JANUARY  TERM  1831.  75 

[The  Cherokee  Nation  vs.  The  Stale  of  Georgia.] 
the  state  of  exhaustion  in  which  we  came  out  of  that  war. 
We  were  then  far  more  anxious  for  peace  than  these  Indian 
nations.  They  continued  the  war  even  after  their  British 
allies  had  made  peace.  The'y  were  fierce  and  powerful  tribes, 
concentrated,  in  great  force,  on  our  then  weak  frontier,  and 
the  first  overtures  for  peace  came  from  us.  It  was  not  until 
1785  that  the  tomahawk  was  buried  by  the  treaty  of  Hopewell. 
Is  that  treaty  marked  with  the  traits  of  conquest.]' 
Let  lis  stipulations  be  candidly  examined.  I  do  not  speak 
of  single  phrases  as  they  have  been  rendered  into  English,  and 
from  which  no  candid  construction  can  be  drawn  against  the 
Indian  nations  who  did  not  understand  our  language,  and 
could  be  expected  to  look  only  to  the  svhstance  of  the  stipu- 
lations. For  example,  we  had  repeatedly  asked  peace  of  the 
Indians.  The  proposition  came  from  us.  They  at  length 
agreed  to  make  peace  with  us;  and  this  agreement  our  com- 
missioners thought  proper  to  express  thus:  "the  commiss- 
ioners plenipotentiary  of  the  United  States  in  congress 
assembled  give  peace  to  all  the  Cherokees,  and  receive  them 
into  the  favour  and  protection  of  the  United  States  of 
America,  07i  the  following  conditions.^'  And  from  this 
phraseology  an  inference  may  be  drawn  that  they  were  a 
conquered  people  suing  for  peace.  But  is  this  a  fair  mode  of 
considering  the  subject?  Look  at  the  intellectual  condition 
of  the  people  with  whom  we  were  treating.  *'  The  head 
men  and  warriors  of  all  the  Cherokees,"  whawere  the  nego- 
tiators on  the  other  side,  and  viho  were  negotiating  in  arms; 
did  not  understand  our  language  at  all,  and  could  negotiate 
only  through  interpreters.  The  thing  interpreted  to  them 
could  have  been  no  other  than  that  there  was  to  be  peace  by 
mutual  consent,  and  that  they  were  now  to  assume  the  same 
relation  towards  the  United  States,  which  they  had  thereto- 
fore held  with  the  antecedent  government  of  Great  Britain;  a 
relation  which  had  never  been  that  of  a  conquered  people,  but 
had  alwa3'S  been  expressed  by  the  terms  of  "friends  and 
allies."  So  in  the  fourth  article  of  that  treaty,  the  language 
in  which  our  commissioners  rendered  the  treaty  is:  "  The 
boundary  allotted  to  the  Cherokees  for  their  hunting  grounds, 
between  the  said  Indians  and  the  citizens  of  the  United  States, 
&c."  and  this  has  been  thought  to   justify  the  inference  that 


76  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
the  Cherokees  hereby  admitted  the  territory  to  belong  to  the 
United  States,  and  that  they  were  thenceforth  to  hold  it  by 
the  2jer7nission  or  alloiment  of  the  United  States,  and  this 
merely  for  the  purpose  of  hunting  upon  it  But  this  is  another 
unfair  verbal  criticism,  much  against  a  people  who  did  not 
understand  our  language,  and  who  could  not  have  been  sup- 
posed, and  cannot  now  be  supposed  to  have  understood  any 
thing  more  by  the  article,  than  that  the  boundary  there  de- 
scribed was  thenceforth  to  be  the  boundary  between  them 
and  the  citizens  of  the  United  States.  This  was  the  substan- 
tial purpose  of  the  article  which  alone  they  could  be  supposed 
to  have  understood  or  intended.  They  were  willing  there 
should  be  peace,  and  that  a  boundary  should  be  drawn  between 
them  and  the  white  people.  There  is  nothing  in  the  sub- 
stance of  either  of  these  stipulations  which  implies  a  conquest: 
and  to.  draw  such  an  inference  from  the  idiomatic  turns  of 
expression  in  a  language,  to  which  they  were  entire  strangers 
would  be  unworthy  of  the  dignity  and  honour,  the  justice  and 
candour  of  the  United  States.  It  is  to  the  substance  of  these 
stipulations  alone  that  a  tribunal  like  this  will  look,  in  inter- 
preting a  treaty  with  a  people  thus  circumstanced.  Let  us 
adopt  this  rule  of  candour,  and  let  us  look  to  the  substance  of 
the  other  articles  of  this  same  treaty,  with  a  view  to  the  ques- 
tion now  before  us,  whether  the  Cherokee  nation  were  thereby 
surrendering  their  political  existence  as  a  nation. 

The  first  and^second  articles  stipulate  mutual  restoration 
of  prisoners,  in  the  language  of  equal  sovereigns  terminating 
a  war  by  a  treaty  of  peace.  Is  it  possible  to  reconcile  this 
stipulation  with  the  idea  of  a  people  subjugated  by  conquest, 
who  are  no  longer  to  have  a  country  of  their  own,  nor  a  sepa- 
rate political  existence?  Their  prisoners  were  to  be  restored 
to  them.  But  of  what  avail  such  restoration,  if  they  were  no 
longer  a  separate  people. 

The  fifth  article  surrenders  intrusive  white  settlers  within 
the  Cherokee  boundary,  to  the  jurisdiction  and  punishment  of 
the  Indians,  at  their  discretion.  Can  this  be  reconciled  with 
the  idea  of  the  political  annihilation  of  these  people  by  con- 
quest? 

The  sixth  article  contains  a  stipulation  on  the  part  of  the 
Cherokees,  to  deliver  up  all  criminals,  fugitives  from  justice, 


JANUARY  TERM  1831.  77 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
who  shall   have   committed  offences  07i   any  citizen  of  the 
United  States,  and  shall  have  taken  refuge  in  their  nation. 
Does  this  look  like  an  extinction  of  their  national  existence? 

But  the  eighth  article  is  decisive  of  this  question.  It  is  a 
mutual  stipulation  by  the  contracting  parties  that  retaliation 
shall  not  be  practised  on  either  side,  ^^excejit  there  is  a  mani- 
fest violation  of  this  treaty;  and  the7i  it  shall  be  preceded 
frst  by  a  demand  of  justice^  and,  if  refused,  then  by  a  de- 
claration of  hostilities. " 

By  what  process  of  human  reason  is  it  possible  to  reconcile 
this  admitted  equality  of  right  to  retaliate  and  make  war  on 
the  United  States  with  the  idea  of  the  abolition  of  theChero- 
kees  as  a  nation?  The  court  will  observe  that  it  is  not  a  right 
professed  to  be  conferred  by  the  treaty.  It  is  dealt  with  as  a 
pre-existing,  inherent  right,  precisely  the  same  right  which  the 
United  States  themselves  possessed  to  retaliate  and  make  war 
upon  the  Cherokees:  and  the  sole  object  of  the  article  is  to 
regulate  this  admitted  right,  and  to  regulate  it  equally,  and 
by  the  same  rule,  on  both  sides.  Did  a  conqueror  ever  enter 
into  such  a  treaty  with  those  whom  he  had  subjugated  and  re- 
duced to  the  condition  of  subjects?  War  by  a  people  in  that 
condition  would  be  treason,  not  lawful  war.  Sovereign  na- 
tions alone  have  a  right  to  make  war.  The  article  recognizes 
one  of  the  established  rights  of  nations,  as  it  is  known  in  the 
law  of  nations,  and  seeks  to  regulate  it,  as  in  modern  times  it 
is  regulated,  by  the  mild  and  peaceable  spirit  of  that  code. 
"./2  sovereign,^'  says  Vattel  (b.  11,  c.  16,  §  336),  ''ought  to 
show  in  all  his  quarrels  a  sincere  desire  of  rendering  justice 
and  preserving  peace.  He  is  obliged,  therefore,  before  he 
takes  up  arms,  and  after  having  taken  them  up  also,  to  offer 
equitable  conditions,  and  then  alone  his  arms  become  just 
against  an  obstinate  enemy,  who  refuses  to  listen  to  justice  or 
equity."  Again  (ib.  §  338),  "if  the  subject  of  the  dispute 
be  an  injury  received,  the  offended  ought  to  follow  the  rules 
we  have  established.  His  own  advantage,  and  that  of  human 
society,  oblige  him  to  attempt,  before  he  takes  up  ai-ms,  all  the 
pacific  modes  of  obtaining  either  the  reparation  of  the  injury, 
or  a  just  satisfaction;  at  least,  if  he  has  not  good  reason  to  dis- 
pense with  it."  And  again  (ib.  §  339),  "when  a  nation 
cannot   obtain  justice,  either  for  a  loss  or  an  injury,  it  has  a 


78  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  Slate  of  Georgia.] 
right  to  do  itself  justice.  But  before  it  declares  war,  tliere 
are  various  methods  practised  among  nations,  which  remain 
to  be  treated  of  here.  We  have  placed  in  the  number  of  these 
methods  of  obtaining  satisfaction,  what  is  called  the  law  of 
retaliation,  according  to  which  we  make  another  suffer  exactly 
so  much  evil  as  he  has  done,"  &c.  &c.  If  this  right  alone  had 
been  the  only  one  recognised  as  a  continuing  right  in  the 
Cherokee  nation,  it  would  have  presented  a  clear  and  unan- 
swerable refutation  of  the  idea  that  this  'n(ition\\?^A  been  extin- 
guished as  a  nation,  by  conquest.  There  is  no  more  decisive 
badge  of  sovereignty  than  the  right  of  making  war  in  a  na- 
tional capacity.  Those,  who  are  parties  to  a  legitimate  public 
war,  can  be  nations  and  sovereigns  only  in  their  political 
character  of  nations  and  sovereigns.  The  very  definition  of 
0.  public  war  involves,  of  necessity,  this  idea.  "War  (says 
Vattel,  b.  1,  c.  1,  §  1)  is  that  state  in  which  a  nation  prose- 
cutes its  rights  by  force."  Again  (§  2),  '■^ public  war  is  that 
betwixt  nations  or  sovereigns,  and  carried  on  in  the  name  of 
the  public  power,  and  by  its  order. ^^  Since,  then,  nations  and 
sovereigns  only,  in  their  political  capacity,  can  wage  a  legiti- 
mate war,  the  admission  here  made,  by  this  article,  that  the 
Cherokees  may  rightfully  wage  such  a  war  against  the  United 
States,  is  a  conclusive  admission  of  their  continuing  political 
existence  as  a  nation;  an  admission  made  by  the  United  States 
themselves,  in  a  public  treaty,  which  treaty  composes  a  part 
of  that  supreme  law  of  the  land  which  is  to  be  administered 
in  this  hall. 

This  treaty  of  Hopewell,  it  is  to  be  observed,  is  a  treaty  of 
peace;  and  was  negotiated  immediately  at  the  close  of  the 
war,  and  probably  on  or  near  the  field  of  battle.  Some  of  the 
witnesses  to  it  appear  to  have  been  ofiicers  in  the  military 
force  of  the  United  States  engaged  in  that  war.  The  com- 
missioners on  the  part  of  the  United  States  were  Benjamin 
Hawkins,  afterwards  the  Indian  agent  in  that  quarter,  Andrew 
Pickens,  Joseph  Martin  and  Lachlan  M'Intosh,  American 
officers.  The  ninth  and  tenth  articles  of  the  treaty  prove  that 
they  were  acting  upon  a  sudden  emergency  and  according  to 
their  own  judgment,  without  any  specific  instructions  from 
congress.  The  ninth  article  may  demand  some  further  notice: 
it  is  in  these  words. 


JANUARY  TERM  1831.  79 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
"For  the  benefit  and  comfort  of  the  Indians,  and  for  the 
prevention  of  injuries  or  oppressions  on  the  part  of  the  citi- 
zens or  Indians,  the  United  States,  in  congress  assembled, 
shall  have  the  sole  and  exclusive  right  of  regulating  the  trade 
with  the  Indians,  and  of  managing  all  their  affairs  in  such 
manner  as  they  shall  think  proper." 

The  tenth  article  is  '■^  until  the  pleasure  of  congress  be 
known  respecting  the  ninth  article,  all  traders,  citizens  of 
the  United  States,  shall  have  liberty  to  go  to  any  of  the  tribes 
or  towns  of  the  Cherokees,  to  trade  with  them,  and  they 
shall  be  protected  in  their  persons  and  property,  and  kindly 
treated.^'' 

I  have  already  remarked  upon  the  ninth  article  in  advance, 
that  it  conceded  no  right  to  the  United  States  to  interfere  with 
the  internal  government  of  these  people.  It  was  a  mere 
stipulation  that  the  United  States  might  regulate  thp  trade 
with  them;  manifestly  meaning  the  trade  between  the  citizens 
of  the  United  States  and  them;  and  the  ninth  article  illustrates 
the  only  species  of  regulation  within  the  contemplation  of  the 
parties,  to  wit,  the  sending  citizens  of  the  United  States  into 
the  Cherokee  territory,  in  the  character  of  ti'aders,  to  furnish 
them  with  such  articles  as  they  might  stand  in  need  of,  and  on 
such  terms  as  they  and  the  traders  should  agree  on.  And  I 
have  shown  that  this  voluntary  stipulation  on  the  part  of  the 
Cherokees  was,  according  to  the  law  of  nations,  in  strict  con- 
sonance with  the  continuance  of  their  political  existence  as  a 
separate  and  sovereign  state.  The  closing  words  of  the  tenth 
article,  "and  of  managing  all  their  affairs  in  such  a  manner  as 
they  (congress)  shall  think  proper,"  are  to  be  compared  with 
the  introductory  words  of  the  article;  with  the  other  stipula- 
tions of  the  treaty;  with  the  practical  exposition  given  to  the 
article  by  congress;  and  with  the  whole  train  of  subsequent 
treaties  made  with  the  same  nation  down  to  the  year  1829: 
and  it  will  be  made  manifest  that  these  words,  however  gene- 
ral^ were  not  intended  or  understood  as  surrendering  the  na- 
tion into  the  hands  of  congress  in  the  light  of  a  conqtiered  *" 
people,  to  deal  with  them  as  they  pleased.  Such  a  construc- 
tion would  be  wholly  irreconcilable  with  the  acknowledged 
right  to  redress  their  grievances  by  war  against  the  United 
States,  if  amicable  redress  could  not  be  obtained.     How  these 


80  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
English  words,  "managing  all  their  affairs  in  such  manner  as 
they  think  proper,"  could  have  been  interpreted  to  the  Chero- 
kees,  we  cannot  know.  But  this  is  clear.  The  Cherokees 
knew  by  the  other  articles  of  the  treaty,  by  the  boundary  line 
which  was  to  separate  them  from  the  whites,  by  the  right 
which  they  reserved  to  themselves  to  punish  white  intruders 
upon  their  territory,  at  their  own  discretion;  and  by  the 
stipulation  to  surrender  fugitives  from  justice  who  should  have 
taken  refuge  within  their  nation,  that  they  were  to  remain  a 
separate  and  independent  nation,  to  be  governed  by  their 
own  laws,  usages  and  customs;  and  by  the  assertion  of  their 
right  to  make  war  upon  the  United  States,  on  a  demand  and 
refusal  of  a  redress  of  grievances,  they  knew  that  they  were 
still  to  be  a  sovereign  nation,  with  the  great  and  decisive 
right  of  war  and  peace.  It  is  impossible,  therefore,  that  they 
could  have  understood  these  words,  as  giving  congress  any 
right  to  interfere  with  that  independence  and  sovereignty 
which  were  so  dear  to  them.  They  could  scarcely  have  sup- 
posed that  such  a  design,  one  so  hostile  and  revolting  to  all 
their  habits  and  feelings,  could  have  been  masked  under  the 
very  friendly  words  which  introduce  the  article,  ^^for  the 
benefit  and  comfort  of  the  Indians,  and  for  the  prevention 
of  injuries  and  opjjression  on  the  part  of  the  citizens.^' 
Congress  never  understood  these  words  as  giving  them  the 
right  of  taking  their  government  out  of  their  own  hands,  or 
in  any  manner  interfering  with  their  self  government,  or 
property,  or  as  authorising  any  thing  more  than  to  license 
traders  to  settle  among  them  and  supply  their  wants,  and  to 
punish  the  whites  who  should  trespass  upon  their  property,  or 
commit  frauds  upon  them,  and  then  fly  from  punishment  into 
the  white  settlements.  Regulations  such  as  these  fairly  be- 
longed to  the  objects  announced  by  the  introductory  words  of 
the  article:  they  tended  to  promote  the  benefit  and  comfort 
of  the  Indians,  and  to  prevent  the  perpetration  of  injuries  and 
oppressions  upon  them;  while  they  had  not  the  slightest  ten- 
dency to  impair  their  political  existence  as  a  state,  and  as  a 
sovereign  state,  in  the  sense  of  the  law  of  nations.  The 
whole  tissue  of  the  subsequent  treaties,  and  the  whole  legisla- 
tion of  congress  with  regard  to  them,  will  make  it  manifest 


JANUARY  TERM  1831.  81 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
that  that  body  never  understood  this  article  in  a  broader  sense 
than  I  have  indicated. 

We  have  another  key  to  the  exposition  of  this  article  in  the 
old  articles  of  confederation  themselves.  In  the  enumeration 
of  the  powers  of  the  old  congress  under  these  articles,  it  is 
said,  in  article  the  ninth:  "the  United  States  in  congress 
assembled  shall  also  have  the  sole  and  exclusive  right 
and  power  of.  regulating  the  trade  and  managing  all  af- 
fairs with  the  Indians,  not  members  of  any  of  the  states. 
The  similarity  of  the  language  here  used,  with  that  which  we 
find  in  the  ninth  article  of  the  treaty  of  Hopewell,  would  justify 
the  belief  that  the  commissioners  of  the  United  States  had  the 
same  object  in  view,  to  wit  to  secure  to  congress,  in  exclusion 
of  the  states,  the  right  to  manage  the  whole  intercourse  with 
the  Indian  nations;  and  to  secure  this  exclusive  privilege  by 
the  consent  of  the  Indians  themselves:  that  is  to  say,  the  ex- 
clusive privilege  of  negotiating  and  treating  with  them,  and  of 
regulating  the  trade  and  managing  all  affairs  in  relation  to  the 
intercourse  between  the  citizens  of  the  United  States,  and  the 
Indian  tribes.  In  the  treaty  of  Hopewell  the  language  of  the 
treaty  is,  "  of  regulating  their  trade  and  managing  all  their  af- 
fairs ;"  in  the  article  of  the  confederation  it  is  "  of  regulating 
the  trade  and  managing  all  affairs  with  them  :"  the  idea  is 
manifestly  the  same,  with  a  very  slight  variation  in  the  lan- 
guage, and  amounts  only  to  this,  that  congress  should  have  the 
power,  exclusive  of  any  other  authority  within  the  United 
States,  of  regulating  the  trade  between  the  citizens  of  the 
United  States  and  the  Indians  ;  and  also  of  managing  all  other 
affairs  relative  to  the  intercourse  between  the  citizens  of  the 
United  States  and  the  Indian  nations,  which  required  such 
management,  from  without :  and  surely  it  is  perfectly  indif- 
ferent to  the  question  of  the  continued  existence  of  the  In- 
dians as  a  state  and  a  sovereign  state,  whether  the  trade  and 
intercourse  between  the  citizens  of  the  United  States  and 
themselves  were  managed  by  the  authority  of  congress,  or  by 
the  several  states. 

This  construction  of  the  ninth  article  of  the  treaty  of  Hope- 
well, to  wit,  that  it  mean  t  nothing  more  than  to  secure  to  congress, 
exclusive  of  the  states,  the  regulation  of  the  trade  and  man- 
agement" of  the  intercourse  with  the  Indian  nations,  is  strongly 


83  SUPREME  COURT. 

[The  Clierokee  Nation  vs.  The  State  of  Georgia  ] 
corroborated  by  the  analogous  provision  of  the  subsequent 
treaty  of  Ilolston  ;  by  the  second  article  of  which,  the  Chero- 
kee nation  stipulate  that  they  "will  not  hold  any  treaty  with 
any  foreign  power,  individual  stale,  or  ivith  individuals  of 
aiiy  state.^' 

But  under  no  construction  that  can  be  fairly  put  upon  the 
article,  can  the  Indian  nation  be  considered  ashaving  intended 
to  surrender  thereby  their  exclusive  right  of  self  government 
within  their  own  territory,  and  their  right  of  making  war  and 
peace,  even  with  the  United  States;  which  we  have  seen  by 
Vattel  are  the  touchstones  of  the  political  existence  and  sove- 
reignty of  a  state. 

Before  we  leave  the  treaty  of  Hopewell,  there  is  another  ar- 
ticle, of  curious  structure,  to  which  it  may  be  proper  to  ad- 
vert. It  is  the  twelfth,  and  is  in  these  words:  "that  the  Indians 
may  have  full  confidence  in  the  justice  of  the  United  States 
respecting  their  interests,  they  shall  have  the  right  to  send  a 
deputy  of  their  choice,  whenever  they  think  fit,  to  congress." 
What  is  the  meaning  of  this  article  ?  in  what  character  was 
this  deputy  to  be  sent  to  congress  ?  The  members  of  the  old 
congress  were  called  delegates,  not  deputies.  It  cannot  be 
supposed,  for  a  moment,  that  this  deputy  was  to  be  received 
in  a  legislative  capacity  on  the  floor  of  congress.  But  the 
previous  articles  of  the  treaty  having  stipulated  that  congress 
should  regulate  the  trade  and  manage  the  intercourse  between 
the  citizens  of  the  United  States  and  the  Cherokee  nation,  this 
nation  had  an  interest  in  seeing  that  this  trade  and  intercourse 
were  placed  on  a  just  footing,  and  was  therefore  authorized 
to  send  a  deputy,  in  a  diplomatic  or  ministerial,  not  in  a  legis- 
lative capacity;  that  he  might  superintend  these  regulations 
while  they  were  yet  under  the  consideration  of  congress,  and 
see  that  no  injustice  was  done  by  them  to  his  nation.  He  was 
not  to  have  a  voice  on  their  passage,  but  he  would  have  had  a 
right  to  object  to  them  in  advance:  and  there  can  be  no  doubt 
that  if  those  regulations  were  deemed  by  his  nation  unjust 
and  oppressive,  they  would  not  have  hesitated,  in  the  relative 
strength  which  they  then  possessed  and  the  warlike  propensi- 
ties by  which  they  were  animated,  to  have  resorted  to  the 
measures  indicated  by  the  eighth  article  of  the  treaty  ;  "  a  de- 
mand of  justice,  and,  if  refused,  a  declaration  ofioar.^' 


JANUARY  TERM  1831.  83 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

This  article  is  illustrated  by  the  practice  which  has  long 
prevailed  with  several  of  these  nations,  of  sending  a  delega- 
tion to  the  seat  of  government  dui'mg  the  session  of  con- 
gress^ to  superintend  their  interests;  and  this  practice  no  more 
detracts  from  their  character,  as  a  separate  and  sovereign  poli- 
tical community,  than  the  more  formal  diplomatic  minis- 
ters from  foreign  parts,  who  reside  at  the  seat  of  government 
with  the  same  view,  can  draw  into  question,  by  that  act,  the 
sovereignty  of  those  who  send  them. 

This  treaty  of  Hopewell,  then,  so  far  from  presenting  us 
with  the  picture  of  a  people  subjected  by  conquest,  dissolved 
as  a  state,  and  merged  into  the  mass  of  citizens  of  the  United 
States;  gives  us,  on  the  contrary,  in  every  article,  the  image 
of  a  separate,  a  powerful,  and  a  martial  nation,  proud  and 
jealous  of  their  independence;  marking  a  boundary  between 
themselves  and  the  citizens  of  the  United  States:  asserting 
the  exclusive  right  of  self  government  within  their  own  terri- 
tory, and  the  lofty  and  decisive  right  of  vindicating  them- 
selves by  force  of  arms  against  any  attempted  injustice  on  the 
part  of  the  United  States  themselves.  The  concessions  which 
they  make  to  the  United  States  are  voluntary  concessions^ 
and  they  are  such  as  leave  them,  according  to  all  the  writers 
on  the  law  of  nations,  in  the  character  of  a  separate  political 
community,  a  state  and  a  sovereign  state.  The  few  idio- 
matic expressions  which  appear  in  some  of  those  articles,  and 
which  have  been  sometimes  supposed  to  favour  the  idea  of  an 
admitted  conquest,  must  have  disappeared  in  the  interpreta- 
tion made  of  them  into  their  own  language,  in  which  nothing 
could  be  seen  and  understood  by  them  but  the  substance  of 
the  articles  themselves;  and  the  feeble  and  unfair  inferences, 
drawn  from  their  loose  expressions  in  a  foreign  language,  are 
entirely  eclipsed  by  those  strong  and  decisive  stipulations, 
which  continually  present  theni  in  striking  contrast  with  the 
citizens  of  the  United  States;  mark  them  off  and  set  them 
apart  as  a  separate  political  community,  with  the  power  of  self 
government,  and  even  of  life  and  death  over  the  white  citi- 
zens who  intrude  into  their  territory;  and  acknowledge  in 
them  such  a  legitimate  power  of  retaliation  and  war  against 
the  United  States,  as  could  have  belonged  only  to  a  distinct,  in- 
dependent, and  sovereign  nation. 


84  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
But,  if  these  few  crude  expressions  in  a  treaty,  made  at  a 
time  and  under  circumstances  like  those  in  which  the  treaty 
of  Hopewell  was  negotiated,  should  still  be  deemed  of  any 
consequence;  what  shall  we  say  of  the  far  more  solemn  and 
deliberate  treaty  of  Holston  made  six  years  afterwards,  under 
the  immediate  direction  of  president  Washington,  in  which 
all  these  expressions  of  superiority  on  the  part  of  the  United 
States  disappear,  and  the  stipulations  are  presented,  as  they 
always  ought  to  be  presented,  Jairli/,  in  their  naked  substance? 
Thistreaty  demands  a  separate  analysis  with  reference  to  the 
question  now  before  us:  the  existence  of  the  Cherokee  nation 
as  a  separate  state.  But  before  I  proceed  to  this  analysis,  per- 
mit me  to  recall  the  attention  of  your  honours  to  the  solemni- 
ties with  which  this  treaty  was  preceded  and  followed:  for 
they  are  such  as,  I  believe,  have  never  accompanied  any  other 
treaty,  not  only  with  an  Indian  nation  but  with  any  other 
foreign  nation  however  potent  and  august;  and  they  mark  it 
with  an  emphasis,  to  which,  I  should  think,  every  serious  and 
correct  mind  cannot  fail  to  attend  with  peculiar  respect  and 
interest. 

The  federal  constitution  had  now  been  adopted:  and  the  go- 
vernment under  it  organized.  Georgia  was  a  member  of  the 
union,  and  was,  of  course,  represented  in  the  senate.  The 
state  of  our  relations  with  the  Indians  was  an  early  and  pro- 
minent object  for  consideration  with  the  illustrious  man  then 
at  the  head  of  our  affairs.  No  one  better  understood  those 
relations.  No  one  regarded  them  with  a  stronger  sense  of 
justice  or  with  a  deeper  wisdom.  It  appears  by  the  journals 
of  the  senate,  that  on  Saturday,  the  22d  of  August  1789,  he 
came  into  the  senate  attended  by  general  Knox,  the  secretary 
of  war,  and,  in  solemn  form,  laid  before  that  body,  the  state 
of  facts  as  they  existed  between  the  Indian  tribes  and  the 
states,  and  submitted  at  the  same  time,  Jb?^  the  advice  and 
consent  of  the  senate,  certain  leading  principles  of  policy 
which  he  proposed  to  pursue  towards  the  Indians.  These 
principles  were  embodied  in  seven  distinct  interrogatories; 
the  fourth  of  which  is,  ^'  whether  the  United  Stales  shall 
guaranty  to  the  Creeks  their  remaining  territory,  and  main- 
tain the  same,  if  necessary,  by  a  line  of  military  forts?'^ 
Here  we  have  president  Washington's  exposition  of  what  is 


JANUARY  TER,M  1831.  85 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
meant,  in  these  treaties,  by  a  guarantee:  it  is  a  solemn  pledge 
of  protection  against  intrusion  upon,  and  invasion  of  their  ter- 
ritory, and  the  mainlaining  of  thai  pledge  hy  military  force 
if  necessary. 

Again,  on  the  11th  of  August  1790,  president  Washington 
sent  a  special  message  to  the  senate,  the  subject  matter  of 
which  he  introduces  by  the  following  suggestion.  "  Although 
the  treaty  with  the  Creeks  may  be  regarded  as  the  main  foun- 
dation of  the  future  peace  and  prosperity  of  the  south  western 
frontier  of  the  United  States,  yet,  in  order  fully  to  effect  so  desi- 
rable an  object,  the  treaties  which  have  been  entered  into  with 
other  tribes  in  that  quarter  must  be  faithfully  performed  on 
our  part." 

He  then  reminds  the  senate  that  by  the  treaty  of  Hopewell 
the  Cherokees  had  placed  themselves  under  the  protection  of 
the  United  States,  within  the  boundary  designated  by  that 
treaty;  that  the  white  people  had  violated  that  boundary  by 
settling  beyond  it;  that  he  was  determined  to  exert  the 
powers  entrusted  to  him  by  the  constitution  in  order  to 
carry  into  faithful  execution  the  treaty  of  Hopewell,  unless 
a  new  boundary  should  be  arranged  by  treat}^  with  the  Che- 
rokees, embracing  the  extensive  settlement,  and  compensating 
the  Cherokees  for  the  cessions  which  they  should  make  on 
the  occasion;  and  he  finally  asks  the  advice  of  the  senate 
whether  overtures  should  be  made  to  the  Cherokees  to  arranse 
such  new  boundary,  and  whether,  in  the  event  of  such  arrange- 
mentbeing  made,  the  United  States  should  stipulate  solemnly 
to  guaranty  the  new  boundary  which  might  be  arranged? 
The  senate,  in  which  the  state  of  Georgia  was  represented, 
answer  by  the  following  resolution: 

"  Resolved,  in  case  a  new  or  other  boundary  than  that  stipu- 
lated by  the  treaty  of  Hopewell  shall  be  concluded  with  the 
Cherokee  Indians,  that  the  senate  do  advise  and  consent  sol- 
emnly to  guaranty  the  same." 

Such  were  the  unusual  and  impressive  solemnities  which 
led  to  the  treaty  of  Holston.  Did  the  president  and  senate 
consider  the  Cherokees  as  an  extinguished  nation:  a  nation  no 
longer  capable  of  contracting  obligations  by  treaty,  by  which 
the  parties  were  to  be  reciprocally  and  for  ever  bound? 
Could  these  men  have  been  capable  of  such  a  solemn  scene  of 


86  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
mummery  and  fraud?  ^  For  what  could  it  have  been  but  the 
grossest  and  basest  fraud,  to  draw  from  these  credulous  and  con- 
fiding Indians  a  concession  of  their  lands  on  the  faith  of 
stipulations  which  the  United  States  considered  at  the  time 
as  of  no  effect,  and  meant  to  violate  whenever  their  interest 
should  require  it? 

But,  may  it  please  your  honours,  there  was  no  such 
thought  at  that  day.  Those  were  days  of  simplicity  and 
integrity;  in  which  men  said  what  they  meant  and  meant 
what  they  said.  The  gravity,  the  high  honour,  the  dignity 
of  the  parties  concerned,  forbid  the  degrading  suspicion  of  any 
foul  or  hollow  mental  reservation.  The  previous  conferences 
between  the  president  and  senate,  when  there  were  no  Indians 
near  to  witness  them,  evince  their  sincerity  and  good  faith, 
and  demonstrate  that  they  regarded  the  Cherokee  nation  as  a 
separate  political  community,  capable  of  contracting,  by  treaty, 
obligations  which  were  mutually  binding  in  the  sight  of  men 
and  heaven. 

Let  us  pass  to  the  treaty  itself,  and  we  shall  see  the 
most  obvious  and  convincing  proofs,  that  such  was  the 
light  in  which  the  Cherokee  nation  was  regarded.  This 
treaty  of  Holston  is  headed,  "a  treaty  of  peace  and  friend- 
ship, made  and  concluded  between  the  president  of  the 
United  States  of  America  on  the  part  and  behalf  of  the 
said  states,  and  the  undersigned  chiefs  and  warriors  of  the 
Cherokee  nation  of  Indians  on  the  part  and  behalf  of  the 
said  nation.'^  Here  you  have  the  contracting  jjarties^ve- 
sented,  in  striking  contradistinction.  The  United  States  on 
the  one  hand,  and  the  Cherokee  nation  on  the  other,  are  exhi- 
bited as  distinct  and  separate  nations,  with  equal  capacity  to 
treat  in  their  public  character,  and  to  bind  themselves  by  the 
obligations  of  a  treaty.  The  treaty  has  all  the  forms  and 
ceremonies  of  the  most  solemn  treaty  made  with  any  foreign 
nation  of  the  most  undisputed  sovereignty.  William  Blunt, 
the  commissioner  on  the  part  of  the  United  States,  is  repre- 
sented in  the  preamble  as  having  been  vested  luith  full  powers 
for  the  purpose,  by  and  with  the  advice  and  consent  of  the 
senate  of  the  United  States;  and  on  the  other  side,  the  under- 
signed chiefs  and  warriors  as  representing  the  Cherokee 
nation ;  and  in  the  conclusion  we  have  the  article  required  by 


JANUARY  TERM  1831,  87 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
our  constitution  and  found  in  all  our  foreign  treaties,  that, 
"  this  treaty  shall  take  effect  and  be  obligatory  on  the  con- 
tracting parties,  as  soon  as  the  same  shall  have  been  ratified 
by  the  president  of  the  United  States,  with  the  advice  atid 
consent  of  the  senate  of  the  United  States.'' 

The  very  objects  of  the  treaty,  as  announced  in  the  preamble, 
are  a  clear  and  palpable  admission,  that  the  Cherokee  nation 
formed  no  part  of  the  United  States,  but  that  they  were  a 
separate  and  sovereign  political  community  in  themselves : 
*'  the  parties  being  desirous  of  establishing />e/'ma«e?«/  jjeace 
and  friendship,  between  the  United  States  and  the  Chero- 
kee nation,  and  the  citizens  and  members  thereof,  and  to  re- 
move the  causes  of  war,  by  ascertaining  their  limits  and  mak- 
ing other  necessary,  just  and  friendly  arrangements."  Is  this 
a  language  to  be  used  towards  a  conquered  people,  a  people  who 
had  lost  their  separate  political  existence  and  had  become  amal- 
gamated with  the  common  mass  of  the  citizens  of  the  United 
States?  Would  such  a  treaty  have  been  made  w^ith  a  part  of  the 
citizens  of  Georgia,  as  Georgia  claims  the  Cherokees  to  be?  The 
idea  is  manifestly  preposterous.  Could  such  a  treaty  have 
been  made  between  the  United  States  and  even  the  whole  state 
of  Georgia  ?  The  proposition  is  entirely  repugnant  to  our 
constitution,  and  to  the  relation  which  the  state  of  Georgia 
bears  to  the  union.  That  state  has  no  political  capacity  to 
enter  into  any  such  treaty  with  the  United  States.  Yet  the 
state  of  Georgia  claims  to  be  and  is  a  sovereign  state  :  while 
we  are  gravely  discussing  the  question,  whether  the  Chero- 
kee nation  with  this  admitted  capacity  to  treat  with  the  United 
States,  to  treat  with  them  of  peace  and  war,  and  actually  treat- 
ing with  them  on  these,  be  even  a  state  ! 

But  let  us  proceed  to  a  closer  examination  of  the  provisions 
of  this  treaty.  "Article  1.  There  shall  be  perpetual  peace  and 
friendship  between  all  the  citizens  of  the  United  States  and 
all  the  individuals  composing  the  whole  Cherokee  nation.'^ 
Here  is  the  obvious  admission  that  the  citizens  of  the  United 
States  and  the  individuals  composing  the  Cherokee  nation 
are  different  people,  belonging  to  different  nations;  the  indivi- 
duals com.  posing  the  Cherokee  nation  are  not  then  citizens  of  the 
United  States  ;  and  by  unavoidable  consequence  they  are  not 
citizens  of  the  state  of  Georgia  or  any  other  state  of  this  union; 


88  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
for  if  they  were  citizens  of  any  one  state,  they  would  necess- 
arily be  citizens  of  the  United  States.  The  fourth  article 
marks  "  the  boundary  between  ihe  citizens  of  the  United 
States  and  the  Cherokee  natio7i."  The  treaty  then  contem- 
plates them  as  being  to  reside  on  the  very  territory  which  they 
now  occupy,  and  still  declares  them  to  be  separated,  on  that 
territory,  from  the  citizens  of  the  United  States.  They 
are,  therefore,  on  that  territory,  not  citizens  of  the  state  of 
Georgia,  and  by  unavoidable  consequence  are  not  subject  to 
the  laws  of  that  state,  while  on  that  territory.  But  the  treaty 
goes  on  to  acknowledge,  in  the  clearest  terms,  the  exclusive 
right  of  the  Cherokee  nation  to  give  the  law  within  their  own 
territory  ;  and  that  that  territory  lies  without  the  jurisdiction 
of  any  state  of  the  union.  Thus  the  eighth  article  declares  that 
"  if  any  citizen  of  the  United  States,  or  other  person,  not 
being  an  Indian,  shall  settle  on  any  of  the  Cherokee  lands, 
such  person  shall  forfeit  the  protection  of  the  United  States, 
and  the  Cherokees  may  ^p«?ii*A  him  or  not,  as  they  jilease. " 
Here  are  the  clearest  and  most  unequivocal  admissions  that  the 
lands  within  their  boundary  are  the  kmds  of  the  Cherokees  ; 
that  within  their  territorial  line  they  are  to  give  the  law,  and 
may  punish  even  white  intruders  as  they  please. 

Permit  me  for  a  moment  to  step  aside  from  the  point  imme- 
diately before  us,  to  ask  whether  it  is  competent  for  the  state 
of  Georgia,  with  this  treaty  in  full  force,  to  say  that  these  lands 
are  not  the  lands  of  the  Cherokees;  to  take  them  from  them;  to 
cause  them  to  be  surveyed  as  part  of  the  ungranted  lands  of  that 
state;  and  to  dispose  of  them  among  her  own  citizens  by  a  public 
lottery?  Is  it  competent  for  that  state  to  declare  that  the  Chero- 
kees shall  not  give  the  law  within  their  own  territory,  but  that 
it  shall  be  a  crime  in  them  to  do  so;  a  crime  indictable  before  the 
state  courts  of  Georgia,  and  punishable  by  imprisonment  in  the 
penitentiary  of  that  state  for  four  years  :  and  that  if  the 
Cherokees  shall  punish  a  capital  offence  committed  by  one  of 
their  own  people,  within  their  own  territory,  by  a  capital 
JDunishment,  it  shall  be  murder  in  judges,  jurors  and  sheriffs; 
and  that  the  whole  of  them  shall  be  executed  on  a  Georgia 
gallows,  for  this  alleged  offence  ?  Yet  such  are  the  laws  which 
the  state  of  Georgia  has  passed,  and  which  they  will  execute; 
unless  restrained  by  the  authority  of  this  court. 


JANUARY  TERM  1831.  89 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
Again,  the  eleventh  article  of  the  treaty  of  Holston  contains 
an  admission  equally  clear  and  unequivocal,  that  the  territory  of 
the  Cherokees  is  i\o\.within  t/tejuy^isdictiono^any  one  of  the 
states.  It  relates  to  citizens  of  the  United  States  who  shall  go 
within  that  territory  and  commit  offences,  and  then  retreat  with- 
in the  jurisdiction  of  the  states:  and  the  provision  is  that  "if 
any  citizen  of  the  United  States  shall  go  into  ani/  toivn,  set- 
tlement, or  territory  belonging  to  the  Cherokees,  and  shall 
there  commit  any  crime,  or  trespass  against  the  person  or  2Jro- 
pertyoiany  peaceable  and  friendly  Indian  or  Indians,  which,*/* 
committed  within  the  juris  diet  ion  of  any  state,  or  withinthe 
jurisdiction  of  either  of  the  said  districts,  against  a  citizen 
or  white  inhabitant  thereof,  would  be  punishable  by  the 
laws  of  such  state  or  disti^ict,  such  offender  or  offenders 
shall  be  subject  to  the  same  punishment,  and  shall  be  pro- 
ceeded against  in  the  same  manner,  as  if  the  offence  had  been 
committed  within  the  jurisdiction  of  the  state  or  district  to 
which  he  or  they  may  belong,  against  a  citizen  or  white  in- 
habitant thereof." 

Can  there  be  a  more  distinct  and  explicit  admission  than 
we  find  here,  on  the  part  of  the  United  States,  that  the 
Cherokee  territory  is  not  within  the  jurisdiction  of  any 
state  of  the  union,  but  that  it  is  the  territory  of  the  Chero- 
kees and  within  their  sole  jurisdiction!  What  isjwn^fi^/c- 
tion7  Is  not  its  universal  acceptation  the  right  to  give  the 
law?  The  affirmation  of  the  treaty  then  is  that  no  state  of 
the  union  has  a  right  to  give  the  law  within  that  territory, 
but  that  the  Cherokees  alone  have  the  right  to  give  it. 

Let  me  again  digress  to  ask  whether,  with  this  treaty  in  full 
force  and  acknowledged  to  be  in  full  force  by  all  the  subsequent 
treaties  between  the  United  States  and  the  Cherokee  nation; 
it  be  competent  for  the  state  of  Georgia  to  give  the  law  within 
that  territory;  to  give  it  exclusively;  and  to  make  it  highly 
penal  in  the  Cherokees  to  do  what  that  treaty  declares  that 
they  alone  have  the  right  to  do?  Is  it  competent  for  the  state 
of  Georgia  to  send  her  sheriffs  and  constables  to  commit  tres- 
passes and  crimes  against  the  Cherokees  within  their  own  ter- 
ritory, by  the  seizure,  transportation,  and  imprisonment  of 
their  persons,  nay,  by  the  execution  of  their  persons,  as  was 
recently  done  in  the  case  of  Tassels;  and  to  wrest  from  them 
M 


90  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
by  force   the  property   consecrated   by  those   treaties?     Yet 
this  is  what  the  state  of  Georgia  has  done,  and  will  continue 
to  do,  unless  restrained  by  the  authority  of  this  court.     But 
to  the  point. 

With  the  provisions  which  we  have  been  surveying,  full 
in  our  view,  can  there  be  a  doubt  that  the  Cherokee  nation 
stands  solemnly  recognized  by  the  United  States  as  a  separate 
political  community,  acting  by  the  public  authority  of  their 
own  nation,  for  the  good  of  the  whole;  authorized  to  give  the 
law  exclusively  within  their  own  territory;  and  capable  of 
contracting,  in  their  sovereign  capacity,  with  the  United 
States,  in  the  form  of  treaty,  and  binding  themselves  as  well 
as  the  United  States,  by  the  obligations  of  such  treaty?  Let 
us  proceed  farther  with  this  treaty. 

By  the  fifth  article  "it  is  stipulated  and  agreed  that  Me 
citizens  and  inhabitants  of  the  United  States  shall  have  a 
free  and  unmolested  use  of  a  road  from  Washington  district 
to  Mero  district,  and  of  the  navigation  of  the  Tennessee 
river.^'  Where  was  the  necessity  or  propriety  of  such  a  sti- 
pulation, if  the  whole  territory  and  the  navigation  of  that 
river  belonged  to  the  respective  states.  A  stipulation  for  a 
right  of  passage  through  the  territories  of  an  independent, 
sovereign  state  is  natural  enough  and  common  enough.  But 
nothing  could  be  more  idle  and  preposterouj  than  for  the 
rightful  owners  to  ask  such  a  stipulation  from  those  who  had 
no  right. 

The  ninth  article  stipulates  that  ^^  no  citizen  or  inhabitant 
of  the  United  States  shall  go  into  the  Cherokee  country, 
without  a  passport  first  obtained  from  the  governor  of  some 
one  of  the  United  States  or  territorial  districts,  or  such  other 
person  as  the  president  of  the  United  States  may  from  time 
to  time  authorize  to  grant  the  same."  What  could  be  more 
absurd  or  unconstitutional  than  such  a  stipulation  as  this  with 
a  part  of  the  citizens  of  Georgia,  with  regard  to  a  portion  of 
the  territory  of  that  state?  But  the  article  distinctly  admits 
the  territory  to  belong  to  the  Cherokees;  and  so  exclusively 
to  belong  to  them,  that  it  required  a  treaty  stipulation  on  their 
part  to  authorize  a  citizen  of  the  United  States  to  enter  it, 
even  on  an  innocent  visit  of  curiosity,  which,  under  this  stipu- 
lation, he  could,  at  last,  only  do  by  the  aid  of  a  passport, 
made  out  according  to  the  treaty. 


JANUARY  TERM  1831.  91 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
The  tenth  article  again  stipulates,  as  had  been  done  in  the 
treaty  of  Hopewell,  for  the  surrender  of  fugitives  from  justice 
who  shall  take  refuge  in  the  Cherokee  nation:  a  stipulation 
wholly  idle  on  the  hypothesis  that  the  states  or  United  States 
had  a  previous  right  to  arrest  such  fugitives  within  the  Che- 
rokee territory;  and  having  no  sense  or  utility  in  it,  except 
on  the  opposite  hypothesis,  which,  indeed,  pervades  the  whole 
treaty;  that  the  jurisdiction  of  that  territory  belonged  exclu- 
sively to  the  Cherokees,  in  the  character  of  a  separate  sove- 
reign state. 

The  twelfth  article  again  contains  the  recognition  of  the 
reciprocal  and  equal  right  of  war  on  the  part  of  the  Cherokees 
against  the  United  States,  in  the  event  of  a  demand  and  refusal 
of  satisfaction  for  injuries:  which,  I  repeat  it,  is,  in  itself,  a 
decisive  admission  of  their  independence  both  of  the  states 
and  of  the  United  States,  and  of  their  continued  existence  as 
a  separate  sovereign  state. 

The  seventh  article  contains  Vciq  guarantee,  so  often  spoken 
of,  which  had  been  the  subject  of  previous  consultation  and 
arrangement  between  the  president  and  senate  of  the  United 
States: 

"Article  7.  The  United  States  solemnly  guaranty  to 
the  Cherokee  nation  all  their  lands  not  hereby  ceded:"  that 
is  to  say,  the  United  States  pledge  the  faith  and  honour  of 
this  nation^  to  protect  and  defend  the  Cherokees,  by  force  of 
arms  if  necessary,  in  the  possession  and  enjoyment  of  all 
their  lands  not  ceded  by  treaty:  for  such  we  have  seen  is  the 
exposition  of  a  guarantee,  as  given  by  president  Washington 
and  approved  by  the  senate.  The  states  of  this  union,  the. 
state  of  Georgia  included,  are  the  parties  to  this  guarantee. 
The  engagement  is  not  that  they  will  not  themselves  disturb 
the  possession,  but  that  they  will  not  permit  it  to  be  done  by 
others.  Each  state  of  the  union  stands  bound,  as  a  member 
of  the  confederacy,  by  the  most  solemn  pledge  of  faith  and 
honour,  given  in  the  sight  of  man  and  God,  that  she  will  not 
permit  it.  It  is  no  excuse,  therefore,  to  the  several  states 
which  compose  this  union  to  say  that  they  are  not  disturbing 
the  Indian  possession:  for  their  engagement  is  that  they  will 
not  permit  it  to  be  done  by  others;  but,  on  the  contrary, 
that  they  will  prevent  it,   by  force  of  arms  if  necessary. 


92  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  Slate  of  Georgia.] 

Being  then  bound  io  prevent  it,  this  pledge  is  not  redeemed 
by  expressing  regret  at  it,  and  crying  out  "5A«we"  on  the 
offending  state.  The  obligation  which  they  have  assumed  is 
not  one  of  sentiment,  which  is  to  be  acquitted  by  heaving  a 
sentimental  sigh.  It  is  an  obligation  oi  action,  and  oi  vigorous 
and  effectual  action.  The  United  States  have  undertaken, 
in  the  most  solemn  form,  to  protect  the  CheroJeees  or  their 
possessions  by  force  of  arms  if  necessary;  and  if,  thus  engaged, 
they  permit  that  possession  to  be  invaded,  they  are  j^ft^'ticipes 
criminis,  and  equally  guilty  with  the  invading  state.  There 
is  no  moral  difference  between  them;  and  if  these  ihxn^s shall 
hQ permitted,  the  faith  and  honour  of  this  nation  are  gone; 
they  are  not  worth  a  rush.  Punic  faith  will  be  quite  as 
respectable  in  history. 

Is  it  that  the  Cherokees  are  now  weak  and  unable  to 
call  us  to  an  account,  that  we  hold  ourselves  absolved 
from  the  obligations  of  this  treaty?  Are  we  so  lost  to 
character,  as  to  excuse  ourselves  on  this  ground,  and  to  make 
the  tacit  admission,  that  we  hold  ourselves  bound  by  our  en- 
gagements only  so  long  as  we  can  be  compelled  to  fulfil  them? 
That  we  will  be  very  faithful  and  honourable  to  the  power- 
ful, who  can  punish  us  for  being  otherwise;  but  that  as  to  the 
weak,  we  will  be  only  just  so  far  faithful  as  suits  our  ease 
and  convenience:  and  that  having  solemnly  undertaken  to 
defend  such,  by  force  of  arms  if  necessary,  we  consider  the 
obligation  as  sufficiently  discharged  by  the  unprofitable  ex- 
pression of  our  sympathies  and  our  regrets.  If  such  be  the 
point  of  degeneracy,  to  which  we  have  already  sunk  since  the 
age  of  Washington,  farewell  to  the  honor  of  the  American 
name:  happy  it  is  for  that  patriot  that  he  was  called  from  this 
scene  of  things,  before  he  witnessed  this  heart-sickening  de- 
gradation of  his  country. 

But  let  us  turn  from  this  affecting  view,  to  the  course  of  the 
argument  before  us,  in  the  hope  that  we  shall  find  here  a  mode 
of  redemption  for  the  plighted  faith  of  our  country,  and  a 
door  of  escape  from  the  national  disgrace  that  threatens  us. 

This  treaty  of  Holston  is  so  decisive  of  the  point  before  us, 
the  solemn  recognition  by  the  United  States  of  the  separate 
existence  of  the  Cherokee  nation  as  a  state,  that  those  who 
advocate  the  laws  of  Georgia  have  resorted  to  various  modes 


JANUARY  TERM  1831.  93 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
of  getting  rid  of  it.     Among  other  things  it  has  been  said,  that 
it  is  an  old  treaty,  made  more  than  forty  years  ago;  and  the 
tacit  inference  is,  that  it  has  become  obsolete  and  of  no  effect, 

frovi  age.  But  where  is  such  a  principle  to  be  found  in  the 
law  of  nations,  or  in  the  reason  of  things?  The  treaty  is  de- 
clared on  its  face  to  be  ^permanent  treaty,  not  a  temporary 
one:  and  according  to  all  the  authorities,  as  well  as  the  reason 

,  of  the  thing,  the  intention  of  the  parties  is  to  give  the  mea- 
sure of  the  duration  of  the  treaty,  as  well  as  the  meaning  of  its 
stipulations.  The  treaty  of  peace  which  closed  the  war  of  our 
revolution  is  much  older  than  this:  but  we  should  think  it 
very  wild  and  strange  in  Great  Britain  to  dispute  the  territo- 
rial boundary  or  the  independence  acknowledged  by  it,  on  the 
ground  that  the  treaty  was  old  and  obsolete:  yet  there  would  be 
quite  asmuch  sense  and  reason  in  the  one  pretension  as  the  other. 
It  is  needless,  however,  to  meet  this  question  on  general 
grounds,  because  the  treaty  of  Holston  has  been  continually 
recognized  by  the_^  United  States,  and  the  guarantee  given 
by  it  has,  by  a  subsequent  treaty,  been  xndidiQ  perpetual  in  ex- 
press terms.  It  was  recognized  by  name  in  the  treaty  of  Phi- 
ladelphia, of  1794,  as  subsisting  to  all  intents  and  purposes  in 
full  force.  So,  also,  in  the  treaty  of  Tellico  of  1798;  by  the 
sixth  article  of  which  the  United  States  declare,  that  they 
''  will  continue  the  guarantee  of  the  remainder  of  their  coun- 
try ybr  ever^  as  made  and  contained  informer  treaties.  By 
the  treaty  of  Tellico  of  1805,  all  former  treaties,  which  pro- 
vide for  the  maintenance  of  peace  and  prevention  of  crimes, 
ai'C  recognized  and  continued  in  force.  By  the  fifth  article  of 
the  treaty  of  1817,  made  at  the  Cherokee  agency,  all  former 
treaties  are  continued  in  full  force;  and  the  latter  treaty,  that 
of  1S17,  is  continued  and  identified  with  the  last  treaty  made 
with  this  nation,  which  was  in  the  year  1819.  Thus  we  have 
the  treaty  of  Holston  recognized  sometimes  specifically  by 
name;  at  others  by  description,  as  belonging  to  the  class  of 
treaties  providing  for  the  continuance  of  peace  and  the  pre- 
vention of  crimes;  at  others  in  common  with  all  the  past  trea- 
ties: and  we  have  the  guarantee  v/hich  it  gives,  declared  in 
express  terms  to  be  obligatory  for  ever  on  the  United  States. 
I  have  dwelt  thus  long  on  the  treaty  of  Holston,  not  be- 
cause it  exhibits  the  Cherokee  nation  in  any  peculiar  light 


94  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
different  from  the  subsequent  treaties,  but  because  it  was  the 
first  treaty  made  with  them  after  the  adoption  of  our  federal 
constitution,  because  of  the  great  and  patriotic  name  under 
whose  immediate  sanction  and  direction  it  was  made,  and  be- 
cause of  the  very  unusual  solemnity  of  previous  consultation 
with  the  senate,  by  which  it  was  preceded.  It  was  a  measure 
taken  with  unexampled  deliberation,  by  a  great  and  wise  and 
good  man;  who  had  the  advantage  of  having  known,  in  per- 
son, the  relation  in  which  these  people  had  stood  to  the  ante- 
cedent government  of  Great  Britain,  and  of  observing  and 
understanding  all  the  political  effects  which  flowed  from  our 
revolution,  with  regard  to  these  people.  We  see  him,  in  this 
treaty,  solemnly  acknowledging  the  Cherokee  nation  as  a  na- 
tion, separate  and  distinct  from  the  United  States,  having  a 
political  existence  and  public  character,  which  gave  them  a 
capacity  to  form  treaties  with  the  United  States;  which  were 
equally  obligatory  on  both  the  contracting  parties:  as  having 
a  territory  of  their  own,  surrounded  by  a  boundary  which 
separated  them  from  the  citizens  of  the  United  States;  within 
which  boundary  they  had  the  sovereign  and  exclusive  right 
of  giving  the  law,  and  from  which  territory  they  had  the 
right,  which  sovereigns  only  could  have,  of  waging  legitimate 
war  against  the  United  States.-  and  we  see  this  treaty  first 
solemnly  advised,  and  afterwards  as  solemnly  ratified  by  the 
senate  of  the  United  States;  of  which  senate  the  state  of 
Georo-ia,  the  defendant  in  this  motion,  was  a  component  part. 
If  a  few  loose  expressions  in  the  comparatively  hasty  treaty 
of  Hopewell,  and  those  fairly  referable  to  the  peculiarities  of 
our  language, .  which  probably  disappeared  in  the  interpreta- 
tion made  at  the  time  to  the  head  men  and  warriors  of  the 
Cherokee  nation,  should  be  supposed  to  give  colour  to  an 
inference  that  the  Cherokees  acknowledged  themselves  to  be 
a  conquered  people,  lying  in  future  at  the  mercy  of  their  con- 
querors; what  shall  we  say  to  the  entire  disappearance  of  all 
those  expressions  in  the  more  solemn,  deliberate,  and  well- 
weighed  treaty  of  Holston.  We  have  nothing  here  about  the 
United  States  giving  peace  to  the  Cherokees:  nothing  of 
their  allotting  hunting  grounds  to  them;  nothing  about  man- 
aging all  their  affairs;  nothing  of  sending  a  deputy  to  con- 
gress.    The  stipulations  are  reduced  to  the  simplest  forms,  in 


JANUARY  TERM  1831.  95 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
a  language  uncoloured  by  any  assumption  of  superiority  on 
the  part  of  the  United  States;  and  these  stipulations,  we  have 
seen,  are  of  such  a  substance,  in  regard  to  the  Cherokees,  as 
to  be  inapplicable  to  any  kind  of  political  existence,  known 
to  the  law  of  nations,  short  of  that  of  a  state,  and  a  sovereign 
state.     Any  inference,  then,  drawn  from  these  expressions  in 
the  treaty  of  Hopewell  (equivocal  at  the  best,  and  at  variance 
with  the  substantial  provisions  of  that  treaty  itself),  must  van- 
ish before  the  stronger  and  'perfectly  unequivocal   light  in 
which  the  treaty  of  Holston  presents  this  nation  before  us. 
If  the  states  of  this  union  be  states  in  the  sense  of  our  consti- 
tution, which  cannot  be  contradicted;    the  Cherokee  nation 
are,  a  multo  fortiori.^  states,  in  the  sense  of  the  same  instru- 
ment.    Indeed,  there  is  no  one  element  in  the  definition  of 
a  state,  as  given  to  us  by  all  the  approved  writers  on  the  law 
of  nations,  which  is  not  found  to  exist  in  full  force  in  the  Che- 
rokee nation:  while  by  the  same  law  we  have  seen  that  there 
is  nothing  in  the  circumstance  of  their  placing  themselves 
under  the  protection  of  the  United  Stales,  nor  in  any  other 
stipulation  of  their   treaties,  which  degrades  them  from  the 
rank  of  states,  and  of  sovereign  states. 

There  is  I  know  not  what  vague  idea  among  us,  that  these  \ 
nations  cannot  be  states,  because  they  are  Indians,  ignorant  \ 
savages,  wild  and  wandering  hordes,   mere   heathens,  very    \ 
little  if  at  all  superior  to  the  beasts  which  they  chase.     This    \ 
is  a  remnant  of  that  superstition  which  led  Pizarro  and  Cortez 
to  hunt  down  the  Mexicans  with  blood  hounds;  and  which     | 
proved  them  (Christians  though  they  styled  themselves)  to  be     ' 
far  worse  savages  than  those  whom  they  persecuted  under  that     ^ 
name.     It  is  not  the  tincture  of  a  skin  by  which  the  rights  of    / 
these  people  are  to  be  tested.     We  are  beginning  to  recover    ; 
from  our  mistake  on  this  ground,  with  regard  to  another  un-   | 
fortunate  race.     Let  us  not  create  for  ourselves,  and  place  in   | 
the  hands  of  a  just  God,  a  new  scourge  of  a  similar  description.    ] 
However  variously  coloured  by  difference   of  climate   or    \ 
other  adventitious  causes,  the  human  beings  who  people  this   | 
globe  belong  to  the  same  family,  and  derive  from  their  com-  / 
mon  Parent  equal  rights.     We  see  them,  all  over  the  earth,  \ 
formed   into   nations  of  different  hue,  without  the  slightest  1 
question  of  their  sovereignty  on  this  gi-ound.     And  as  to  their 


96  SUPREME  COURT, 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

being  savages,  heathens,  and  ignorant  wandering  tribes,  even 
if  this  were  still  the  case,  which  we  know  it  is  not,  it  would 
not  detract  from  their  independence  and  sovereignty  a^j^a/e.?; 
nor  weaken  in  the  slightest  degree  the  obligation  of  those 
treaties  which  we  have  thought  proper  to  form  with  them. 

It  was,  indeed,  once  made  a  question  whether  treaties  with 
heathens  were  binding  on  Christians,  the  other  contracting 
party.  '*  Grotius  (says  Vattel,  b.  ii,  c.  xii,  §  16)  has  treated 
this  subject  at  large,  and  this  discussion  might  be  necessary  at 
a  time  when  the  madness  of  party  still  darkened  those  princi- 
ples which  it  had  long  caused  to  be  forgotten;  but  we  may 
venture  to  believe  that  it  would  be  superfluous  in  our  age. 
The  law  of  nature  alone  regulates  treaties;  the  difference  of 
religion  is  a  thing  absolutely  foreign  to  them.  DiflTerent  peo- 
ple treat  with  each  other  in  quality  of  men,  and  not  under  the 
character  of  Christians  or  Mussulmen.  Their  common  safety 
requires  that  they  should  treat  with  each  other  and  treat  with 
security.  Every  religion  that  should  in  this  case  clash  with 
the  law  of  nature,  would  bear  upon  it  the  marks  of  reproba- 
tion ;  and  it  could  not  come  from  the  Author  of  nature,  who 
is  always  constant,  always  faithful.'' 

Would  to  God  that  the  religion,  of  which  we  boast  in  theory, 
may  be  marked  in  practice  with  those  divine  traits.  But  if 
the  tree  be  to  be  judged  by  the  fruits,  and  the  fruit  of  the 
Christian  tree  be  to  do  unto  others  as  lue  looulcl  they  should 
do  unto  us,  it  is  much  to  be  feared  that  there  are  few  nations 
on  the  earth  that  could  rightfully  revive  the^  discussion  of 
Grotius.     May  we  be  found  to  be  one  of  these  few. 

The  Cherokees,  however,  are  no  longer  subject  to  the  charge 
of  heathenism.  The  religion  of  the  cross  has  been  introduced 
among  them;  and,  most  opportunely  for  them,  has  been  em- 
braced extensively.  Such  is  the  allegation  of  the  bill,  and  it 
remains  to  be  contradicted  by  an  answer. 

If  it  be  necessary  to  the  political  existence  of  a  state,  that 
they  should  cease  to  be  wandering  savages:  they  have  ceased. 
They  have  become  cultivators  of  the  earth,  herdsmen,  and 
mechanics.  If  it  be  necessary  to  their  political  existence  as  a 
state,  that  they  should  have  a  settled  and  organized  govern- 
ment, and  a  regular  administration  of  laws  and  justice:  they 
have  them  all;  and,   until  this  invasion  of  their  rights,  were 


JANUARY  TERM  1831.  97 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
prospering  in  peace  and  advancing  rapidl}'  in  civilization  and 
religion. 

But  such  is  the  strange  perverseness  of  the  human  mind, 
especially  when  darkened  and  distorted  by  interest;  that  this 
very  change  in  their  intellectual  and  moral  condition;  which, 
one  should  have  thought,  a  priori,  would  have  removed  all 
shadow  of  objection  to  the  force  of  any  treaties  with  them;  has 
become  itself  an  offence,  and  a  new  and  substantial  ground 
of  persecution.  Georgia,  as  one  of  the  United  States,  has  been 
labouring  for  nearly  half  a  century,  in  conjunction  with  her 
sister  states,  with  the  most  humane  and  christian  assiduity  and 
perseverance,  to  bring  about  a  change  in  the  intellectual  and 
moral  condition  of  these  people ;  and  having  completely 
effected  the  purpose,  she  finds  in  this  very  change  a  ground  of 
quarrel  with  her  pupils,  as  well  as  with  her  sister  states,  her 
auxiliaries  in  this  work  of  piety;  accusing  the  latter  of  a  hypo- 
critical affectation  of  benevolence  in  bringing  about  this  refor- 
mation, and  the  former  of  a  violation  of  her  sovereignty  in  sett- 
ing up  an  independent  government  within  her  chartered  limits. 
So  long  as  they  were  savage,  they  were  permitted  to  govern 
themselves  by  their  own  laws  and  customs  without  complaint; 
but  having  now,  under  the  tuition  of  Georgia  and  the  other 
states  of  the  union,  become  civilized;  and  having  established 
a  regular  and  well  balanced  government,  and  a  code  of  just 
and  rational  laws,  their  right  of  self  government  is  at  an  end. 
So  it  would  seem  that,  in  the  estimate  of  their  preceptress, 
their  right  to  govern  themselves  diminishes  in  the  ratio  that 
their  capacity  for  self  government  increases,  and  expires  en- 
tirely when  that  capacity  becomes  complete. 

What  can  these  unfortunate  people  do  that  will  give  satisfac- 
tion to  the  state  of  Georgia?  While  they  were  in  their  original 
hunter  state,  and  fierce  and  powerful  in  war,  their  inroads  on 
the  frontier  were  the  constant  theme  of  complaint;  and  it  was 
thought  on  every  hand  to  bethe  true  policy,  as  well  as  the  Chris- 
tian duty,  of  the  United  States,  to  endeavour  to  reclaim  and 
civilize  them.  This  wish  was  indicated  to  them  by  the  treaty  of 
Holston;  negotiated,  as  we  have  seen,  under  the  immediate  di- 
rection of  president  Washington.  The  fourteenth  article  of  that 
treaty  is  in  these  words:  "  that  the  Cherokee  nation  may  be  led 
to  a  greater  degree  of  civilization,  and  to  become  herdsmen  and 
N 


98  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
cultivators,  instead  of  remaining  in  a  state  of  hunters,  the 
United  States  will,  from  time  to  time,  furnish  gratuitously  the 
said  nation  with  useful  implements  of  husbandry;  and  farther, 
to  assist  the  said  nation  in  so  desirable  a  pursuit,  and  at  the 
same  time  to  establish  a  certain  mode  of  communication,  the 
United  States  will  send  such  and  so  many  persons  to  reside 
in  said  nation,  as  they  may  judge  proper,  not  to  exceed  four  in 
number,  who  shall  qualify  themselves  to  act  as  interpreters. 
These  persons  shall  have  lands  assigned  to  them  by  the  Chero- 
kees  for  cultivation  for  themselves  and  their  successors,  but 
they  shall  be  precluded  from  exercising  any  kind  of  traffic." 

The  policy  here  announced  was  pressed  by  general  Wash- 
ington during  the  eight  years  of  his  administration  with  all  the 
earnestness  and  energy  which  distinguished  his  character,  and 
was  followed  up  by  his  successors  with  so  much  prosperity,  that 
in  1808  the  upper  towns  communicated  to  president  Jeffer- 
son their  anxious  desire  to  renounce  the  hunter  state,  and  to 
engage  in  the  pursuits  of  agriculture  and  civilized  life  in 
the  country  they  then  occupied;  and  they  were  encouraged  by 
him  so  to  do,  by  the  assurance  of  the  patronage,  aid,  and 
good  neighbourhood  of  the  United  States.  This  fact  is  recited 
in  the  preamble  to  the  treaty  of  1817,  and  that  treaty  was  ex- 
pressly made  to  give  effect,  among  other  things,  to  the  accom- 
plishment of  this  purpose.  This  was  followed  by  the  treaty 
of  1819,  one  of  whose  avowed  objects  it  is  to  enable  these 
Cherokees  to  commence  without  delay  the  measures  which 
they  deem  necessary  for  the  civilization  and  preservation 
of  their  nation;  and,  by  the  same  treaty,  the  United  States 
accept  a  cession  of  their  lands,  in  trust,  to  form  a  school- 
fund,  to  be  applied  under  the  direction  of  the  president  of  the 
United  States  ''  to  diffuse  the  benefits  of  education  among 
them." 

Thus,  as  their  exclusive  right  to  give  the  law  within  their 
own  territory  had  been  recognized  by  the  treaty  of  Holston, 
their  right  to  give  it,  in  the  character  of  a  civilized  nation,  is 
recognised  by  these  latter  treaties:  and  if  an  organized  govern- 
ment, and  a  code  of  rational  laws,  well  administered,  be  essen- 
tial to  the  consummation  of  their  character  as  a  state,  that 
consummation  has  now  been  given  under  the  sanction  and  co- 
operation of  the  United  States. 


JANUARY  TERM  1831.  99 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

They  have  been  sometimes  called  Indian  tribes:  does  this 
name  touch  the  question  of  their  political  existence  as  a  state? 
I  apprehend  not:  for  the  name  has  no  connexion  whatever 
with  the  political  charade?'  of  the  people  to  whom  it  is  ap- 
plied. The  word  tribe  is  defined  by  Webster;  1.  A  family, 
race  or  series  of  generations  descending  from  the  same  pro- 
genitor, and  kept  distinct,  as  in  the  case  of  the  twelve  tribes 
of  Israel,  descended  from  the  twelve  sons  of  Jacob.  2.  A 
division,  class  or  distinct  portion  of  people,  from  whatever 
cause  that  distinction  may  have  originated.  The  different 
nations  of  this  earth  have  all  descended  from  the  same  pro- 
genitor, and,  in  reference  to  their  common  origin,  may  with 
strict  propriety  be  called  tribes.  The  Jews,  in  the  height  of 
their  national  glory,  were  still  but  tribes.  David  and  Solo- 
mon, in  succession,  ruled  over  ten  of  these  tribes  in  the  land 
of  Judea:  were  they  not  states,  and  sovereign  states  too? 
Rome  and  Athens  were  both  divided  into  tribes:  did  they,  for 
this  reason,  cease  to  be  states.  With  regard  to  the  Indians, 
the  term  tribes  conveys  no  other  idea  than  that  of  their  divi- 
sion into  separate  nations,  as  the  Cherokees,  Chicasaws,  Choc- 
taws,  Creeks,  &c.  Weseethat  in  these  treaties  they  are  called 
nations,  not  tribes.  It  is  not  a  name,  however,  by  which 
the  political  condition  of  a  people  is  to  be  tested.  Whether 
a  separate  community  be  called  a  nation  or  a  tribe,  we  have 
seen  that  if  they  possess  the  independent  power  of  self  govern- 
ment, of  making  legitimate  war  and  of  terminating  these  wars 
by  treaties  of  peace,  they  are  states  in  the  sense  of  the  law  of 
nations:  and  by  these  tests  it  seems  to  us  incontrovertibly 
clear  that  the  Cherokee  nation  is  a  state. 

Are  they  a  foreign  state  in  the  sense  of  the  constitution? 
Now  it  is  admitted  that  unless  they  be,  this  court  cannot  take 
original  jurisdiction  of  the  subject. 

The  question  being  as  to  what  is  meant  by  a  foreign  state 
in  that  part  of  the  constitution  which  marks  out  the  original 
jurisdiction  of  this  court;  it  is  proper  to  look  to  the  passage 
itself,  to  observe  the  connexion  in  which  the  terms  are  used 
and  the  ideas  associated  with  it,  and  thus  to  collect  from  the 
context,  the  meaning  of  the  instrument. 

According  to  the  constitution  as  first  adopted,  the  original 
jurisdiction  of  the  supreme  court  extended, 


100  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  S(atc  of  Georgia.] 

1.  To  controversies  between  two  or  more  states;  meaning, 
as  all  admit,  two  or  more  states  of  this  union. 

2.  To  controversies  between  a  state  and  citizens  of  another 
state;  still  meaning  states  of  the  union. 

3.  To  controversies  between  a  state  (that  is  a  state  of  the 
union)  and  a  foreign  state;  which  can  mean  only  a  state /or- 
cein to  the  union:  and  the  first  and  third  heads  of  jurisdic- 
tion remain  untouched  by  the  eleventh  amendment. 

The  parties  presented  under  the  first  head  as  founding  the 
original  jurisdiction  of  this  court  are  two  or  more  states. 
No  one  disputes  that  this  mediXis  states  of  the  union. 

The  parties  presented  in  contrast  under  the  second  head 
are,  on  the  one  hand  a  state,  which  no  one  can  dispute  means 
a  state  of  the  union;  and  on  the  other  a.  foreign  state:  ioroi^n 
to    what?     Manifestly    foreign  to  that  union  to   which    the 
other  state  belongs.     The  only  ideas  presented  to  the  mind 
are  a  state  of  the  unio)i  and  a  state  out  of  the  union. 
The  ideas  are  purely  political,  not  local  or  geographical. 
The  only  distinction  awakened  in  the   mind   is   the  distinc- 
tion  between  a  state  of  the  union,  and  a  state  foreign   to 
the  union.     And  this   construction,  forced  upon  the   under- 
standing by  the  context,  is  confirmed  by  a  consideration  of  the 
reason  which   manifestly  prom.pted  this  provision  in  the  con- 
stitution; which  was  to  offer  to  the  foreign  state   the  most 
impartial  tribunal  that  our  institutions  afford,  and  the  highest 
court  of  the  nation,   which  could,  alone,  be  known   to  them 
as  the  nation.     For  under  our  political  institutions,  foreign 
states,  in  their  national  and  public  capacity,  can  have  no 
knowledge  of  the  state  governments.     Their  only  intercourse 
is  with  the  government  of  the  United  States.      With  this  gov- 
ernment they  treat,  and  fro7n  this  governmeiit  they  have  the 
right  to  demand  a  fair  construction  and  enforcement  of  these 
treaties.      To   this  government  they  have  a  right  to  look  for 
justice;  and  if  a  matter  of  judicial  controversy  arise  between 
them  and  a  state,  the  only  proper  tribunal  for  its  settlement  is 
the   court   of  the  government  which  exclusively  conducts  all 
our  foreign  relations:  and  this   is  more  pre-eminently  proper 
if  the  controversy  arise  out  of  a  public  treaty  which   they 
have  previously  negotiated  ivi/h  the  government  of  the  United 


JANUARY  TERM  1831.  101 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

States.     To  refer  them  to  the  courts  of  the  offending  state 
itself,  on  such  an  occasion,  would  be  mockery  and  insult. 

If  these  views  are  sound  (as  I  think  they  must  be  admitted 
to  be),  let  us  bring  them  to  the  case  of  the  Cherokee  Indians. 
We  have  proved  that  they  are  a  state;  are  they  a  state  of 
this  union?  Every  one  will  answer  no:  then,  by  inevitable 
necessity,  they  are  a  sidXQ  foreign  to  the  union,  and  d.  foreign 
state  in  the  sense  of  our  constitution. 

Is  not  their  case  as  precisely  within  the  spirit  and  reason, 
as  the  letter  of  the  constitution?  Is  not  this  the  only  important 
tribunal  which  our  institutions  offer  to  them,  when  one  of  the 
states  of  this  union  is  the  defendant?  In  their  political 
capacity  can  they  know  the  governments  of  these  states  any 
more  than  any  other  foreign  state?  Can  they  treat  with  the 
states:  are  not  their  treaties  necessarily  with  the  United 
States?  Is  it  not,  then,  from  the  government  of  the  United 
States  that  they  have  a  right  to  demand  the  fair  construction 
and  faithful  performance  of  these  treaties?  And  since  this  is 
a  controversy  with  a  state,  growing  out  of  their  treaties  with 
the  United  States;  to  what  other  tribunal  can  they  be  with  any 
propriety,  justice,  or  decency  referred,  but  to  the  court  of  the 
government  with  which  they  have  formed  these  treaties? 
Will  you  turn  them  over  to  the  courts  of  the  offending  state? 
Would  not  this  be  as  much  mockery  and  insult  in  their  case, 
as  in  the  case  of  ani/  other  foreign  state,  having  a  similar 
controversy?  Can  any  one  motive  be  imagined  for  this  pro- 
vision in  our  constitution,  which  does  not  apply  with  precisely 
the  same  force  to  the  Cherokee  nation,  as  to  any  other  foreign 
state?  If  not;  the  spirit  and  reason  of  the  constitution,  as 
well  as  its  letter,  clearly  embrace  their  case,  and  imperiously 
call  upon  this  honourable  court  to  assume  the  jurisdiction. 

I  can  anticipate  no  contrariety  of  opinion  that  can  arise  upon 
this  subject,  but  from  confounding  the  political  idea  of  a  fo- 
reign state,  as  presented  by  the  constitution,  with  the  geo- 
graphical idea  which  the  same  expression  might  present  in  a 
different  connexion.  Foreign  is  a  relative  term  of  various 
signification,  and  its  sense  depends  upon  that  relation;  upon 
the  thing  with  which  it  is  compared,  and  to  which  it  is  put  in 
apposition.  The  word  ^^ foreign"'  does  frequently  give  the 
idea  of  mere   locality,   without    regard    to    jurisdiction;  but 


102  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
even  in  this  sense,  its  signification  varies  with  the  idea  with 
which  it  is  compared  in  the  mind  of  the  speaker.  The  inhabi- 
tants of  a  village  call  every  stranger  a  foreigner^  although  he 
may  reside  in  the  same  county;  the  comparative  idea  being 
that  of  the  village.  In  our  large  commercial  cities,  z  foreigner 
gives  the  idea  of  one  from  a  distant  country,  the  comparison 
being  made  with  the  whole  United  States.  In  London,  a  man 
who  is  about  to  make  a  voyage  to  the  East  Indies  is  said  to  be 
going  io  foreign  parts,  although  those  parts  may  belong  to  the 
dominion  of  the  same  crown:  the  comparison  being  made 
with  the  British  islands  in  the  neighbourhood,  without  any 
reference  to  jurisdiction.  We  speak  of  goods  of  foreign 
manufacture,  in  comparison  with  and  contradistinction  from 
goods  made  at  home,  that  is  of  domestic  manufacture,  with- 
out any  reference  to  jurisdiction. 

Sometimes  the  word  presents  a  mere  chemical  idea,  without 
any  reference  io place  ov  jurisdiction;  thus  we  speak  oi  foreign 
ingredients  in  water,  the  standard  of  comparison  being  the 
element  in  its  native  purity. 

At  others  it  has  a  sense  merely  metaphysical;  thus  we  say, 
such  an  intention  was  foreign  to  my  mind;  the  mind,  free 
from  any  such  intention,  becomes  the  object  of  comparison. 

The  adjective yb>'e^|§•7^  joined  to  the  same  noun,  will  present 
a  different  idea  when  the  object  of  comparison  is  difierent; 
thus,  foreign  country  will  mean  a  country  not  within  the 
jurisdiction  of  our  own  government ;  or,  it  will  mean  simply 
a  distant  country  in  point  of  situation,  accordingly  as  ju- 
risdiction or  locality  be  the  several  comparative  ideas  in  the 
mind  of  the  speaker.  Thus  Webster  says,  {verho  ^^  foreign^') 
"  we  call  eve7'y  country  foreign  which  is  not  within  the 
jurisdiction  of  our  own  government.  In  this  sense  Scot- 
land, before  the  union,  was  foreign  to  England,  and 
Canada  is  now  foreign  to  the  United  States.  More  general- 
ly,^^ he  continues,  ^'foreign  is  applied  to  countries  m,ore 
remote  than  an  adjacent  territory;  as  a  foreign  market,  a 
foreign  prince.  In  the  United  States  all  transatlantic  coun- 
tries d^TQ  foreign.'' 

Thus,  in  order  to  ascertain  the  meaning  of  the  word ybm^w, 
in  any  given  case,  it  is  indispensably  necessary  to  ascertain 
the  idea  with  which  it  is  compared  and  to  which  it  is  opposed : 


JANUARY  TERM  1831.  103 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
since  it  is  that,  and  that  alone,  which  gives  the  true  measure 
of  its  meaning;  as  every  experiment  that  we  can  make  upon 
the  subject  will  satisfy  us. 

Now  let  us  turn  again  to  the  passage  of  the  constitution 
under  consideration,  with  reference  to  this  object  of  ascer- 
taining the  comparative  ideato  which  the  wordforeign  is  there 
opposed.  The  supreme  court  shall  have  original  jurisdiction 
of  all  controversies  between  a  state  of  this  union  and  a  for- 
eign state.  Is  it  not  clear  that  a  state  of  the  union  is  the 
comparative  idea,  to  which  the  foreign  state  is  ojiposed,  and 
consequently  that  a  foreign  state  means  any  state  which 
does  not  belong  to  the  union? 

Again,  the  constituiion  is  a  political  not  a  geographical 
instrument,  and  it  is  here  dealing,  emphatically,  with  a  ques- 
tion of  policy  and  jurisprudence,  not  with  one  of  locality. 
The  word  state  is  used  in  its  politicalj  not  in  its  geographi- 
cal sense.  It  means  "a  political  body  or  body  politic,'^  as 
Webster  defines  it;  or  a  separate  community,  under  a  gov- 
ernment of  their  own,  as  the  writers  on  the  law  of  nations 
define  it;  or  a  separate  political  community  acknowledged  as 
such  by  the  governor  of  the  United  States,  as  this  court  has 
defined  it.  In  all  which  senses,  the  Cherokee  nation  is  a 
state,  and  a  state  foreign  to  our  confederacy;  therefore  a 
foreign  state  in  the  sense  of  the  constitution. 

If  they  be  not  a  foreign  state,  and  a  sovereign  state,  by 
what  right  do  the  president  and  senate  of  the  United  States 
/rea^  with  them?  Their  power  to  raak.Q  treaties  is  derived 
solely  from  the  constitution  of  the  United  States.  The  term 
treaty  is  borrowed  from  the  law  of  nations,  and  to  that  law 
we  are,  therefore,  to  refer  for  its  meaning.  Now,  by  that 
law,  what  is  a  treaty?  "  A  treaty,  in  Latin  foedus,  is  a  pact 
made  with  a  view  to  the  public  welfare  by  the  superior 
power,  either  for  perpetuity,  or  for  a  considerable  time." 
Vat.  B.  II,  c.  12,  §  152.  By  whom  can  such  treaties  be 
made?  "  Public  treaties  can  only  be  executed  by  superior 
powers,  by  sovereigns  who  contract  in  the  name  of  the 
stateP  Id.  ib.  §  154,  Now  as  a  sovereign  cannot  make  a 
treaty  with  himself,  he  contracts  only  with  another  sovereign, 
each  necessarily  foreign  to  the  other  at  the  time  of  the  treaty: 
for  if  they  be  two  sovereignties,  they  arc  necessarily  exclu- 


104  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
sive  of  each  other  in  their  respective  spheres.  In  what  light, 
then,  can  these  treaties,  thus  continually  made  by  the  president 
and  senate  of  the  United  States,  be  regarded  but  as  acknow- 
ledgements that  the  Cherokee  nation  is  a  foreign  sovereign, 
a  foreign  state:  since  they  have  no  constitutional  right  to 
form  a  treaty  but  with  such  a  state? 

To  what  branch  of  our  government  does  it  belong,  under 
our  constitution,  to  decide  the  question  of  "foreign  state,  or 
not  a  foreign  state  ?"  This  question  has  been  repeatedly 
raised  before  this  court,  and  the  uniform  and  unanimous  deci- 
sion has  been,  that  it  belongs  exclusively  to  that  branch  of  the 
government  to  which  the  conduct  of  our  foreign  relations  has 
been  entrusted  by  the  constitution;  ihe  executive  branch. 
It  has  been  again  and  again  argued  here,  that  the  revolutions 
in  the  colonies  of  France  and  Spain  had  reached  such  a  point 
as  that  this  court  could  regard  them  as  states,  in  the  sense  of 
our  constitution  and  laws:  but  the  answer  has  invariably  been, 
that  this  court  could  recognize  none  of  these  governments  as 
states,  until  they  had  been  recognized  as  such  by  our  own 
executive,  to  ivhoin  the  question  exclusively  belongs:  and  it 
follows,  by  necessary  consequence,  that  this  court  cannot 
refuse  to  recognize  as  foreign  states  and  as  sovereign  states 
those  whom  our  executive  has  recognized  as  such;  for  if  the 
power  belong  exclusively  to'  the  executive,  their  decision 
must  be  conclusive.  Now  what  more  solemn  and  decisive 
recognition  of  a  foreign  and  sovereign  state  can  the  execu- 
tive afford,  than  by  making  a  public  treaty  with  them?  This 
has  always  been  held  conclusive  by  this  tribunal:  and  this  re- 
cognition of  the  Cherokees  as  a  foreign  and  sovereign  state, 
has  been  constantly  afforded  by  the  president  and  senate  of 
the  United  States,  from  the  foundation  of  our  government 
to  the  present  day.  Can  this  court,  then,  refuse  to  recognize 
them  as  z  foreign  state? 

Can  it  be  denied,  these  treaties  compose  a  part  of  the  su- 
preme law  of  this  land,  in  their  character  of  treaties?  In  a 
question  of  property  brought  before  you,  and  turning  on 
these  treaties;  could  you  say  that  they  were  not  treaties, 
when  the  president  and  senate,  to  whom  the  question  exclu- 
sively belongs,  have  so  repeatedly  declared  that  they  are 
treaties?     And  if  you   would,  on  a  question  of  property, 


JANUARY  TERM  1831.  105 

[The  Cherokee  Nation  us.  The  State  of  Georgia.] 
admit  them  to  be  treaties,  does  not  this  adznission  necessarily 
involve  the  admission  that  those  with  whom  they  have  been 
made  are  sovereign  and  Jbreign  states? 

Are  the  Cherokees  citizens  of  the  United  States?  It  is 
impossible  to  open  any  one  of  these  treaties  without  reading 
the  negative  answer  in  every  provision.  They  are  perpetually 
mentioned  in  contradistinction  to  the  citizens  of  the  United 
States.  The  boundary  of  their  territory  is  called  a  boundary 
between  the  citizens  of  the  United  States,  and  the  Cherokee 
Indians.  The  citizens  of  the  United  States  are  prohibited 
from  settling  on  the  lands  of  the  Cherokees  under  pain  of 
such  punishment  as  the  Cherokees  may  choose  to  inflict.  But 
it  is  needless  to  go  through  these  provisions,  for  your  hon- 
ours must  have  observed  that  every  provision,  and  almost  every 
line,  contains  the  demonstration  that  they  are  not  citizens. 
Nay  the  general  fact  of  treating  with  them  involves  the  same 
demonstration. 

But,  independent  of  these  treaties,  we  all  know  that  they 
are  not  citizeiis  of  the  United  States.  They  owe  no  allegi- 
ance to  your  constitution;  have  no  voice  in  your  laws,  and  are 
not  bound  by  them.  They  pay  you  no  taxes;  contribute  no- 
thing to  the  support  of  your  civil  list.  They  take  no  part  in 
your  foreign  wars,  unless  they  choose  to  do  so.  They  can 
make  war  upon  you  themselves,  without  committing  treason. 
This  last  feature  of  the  case  alone  is,  of  itself,  demonstrative 
of  the  fact  that  they  are  not  citizens  of  the  United  States. 

And  if  they  are  not  citizens  of  the  United  States  what  are 
they;  what  can  they  be,  but  aliens?  There  is  no  middle 
character  known  to  our  constitution  and  laws.  And  if  they 
be  a  nation  of  aliens,  what  can  they  be  but  a  foreign  na- 
tion, a  foreign  state,  in  the  sense  of  the  constitution? 

That  they  are  aliens  has  been  solemnly  decided  in  New 
York:  and  indeed  there  is  no  possibility  of  avoiding  this  con- 
clusion, but  by  declaring  them  to  be  citizens  of  the  United 
States:  but  this  it  is  not  possible  to  do  but  by  abandoning  the 
only  established  tests  of  alienage  and  citizenship;  the  test 
of  allegiance. 

Now  if  the  individuals  of  this  nation  be  aliens,  they  have 
a  right  to  sue  a  citizen  in  the  federal  circuit  courts;  and  if  the 
individuals  of  the  nation  have  a  right  to  the  jurisdiction  of 
O 


106  saPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
your  circuit  courts,  must  not  the  nation  collectively  to  which 
they  belong  have  right  to  sue  in  this  court,  where  a  state  is  a 
party?  Can  your  honours  conceive  a  case  in  which  an  alien 
can  sue  in  the  circuit  courts,  w^here  the  state  to  which  he  be- 
longs is  not  ^  foreign  state)  Does  not  the  supposition  involve 
a  solecism  in  terms?  If  the  individual  be  an  alien,  does  it  not 
follow,  inevitably,  that  the  state  to  which  he  belongs  is  a 
foreign  state?  And  if  so,  the  unavoidable  admission  that 
the  Cherokees  are  aliens  draws  along  with  it  the  equally  una- 
voidable conclusion  that  their  state  is  a  foreign  state  and, 
consequently,  that  they  have  a  right  to  the  original  jurisdic- 
tion of  this  court,  against  a  state  of  the  union. 

If,  on  the  other  hand,  the  Cherokee  nation  be  not  a  foreign 
state,  then  the  people  of  that  nation  are  not  aliens,  and  not 
being  aliens,  must  be  citizens  of  the  United  States:  which  no 
jurist,  with  these  treaties  and  the  constitution  of  the  United 
States  before  him,  can  aflirm. 

Such  are  the  views  which  have  conducted  the  counsel  of 
these  people  to  the  conclusion  that  they  are  authorised  to  stand 
before  this  court  in  the  character  of  a  foreign  state,  and  to  in- 
voke its  jurisdiction  against  the  defendant. 

What  are  the  objections  to  considering  them  as  a  foreign 
state?  Is  it,  accoi-ding  to  the  popular  notion,  that  they  are 
not  a  transatlantic  state?  Then  Mexico  is  not  a  foreign 
state,  which  will  hardly  be  affirmed. 

Is  it  that  they  lie  within  the  territorial  limits  of  the  United 
States?  But  this  would  be  changing  the  ji^litical  idea  of  a 
foreign  state,  which  has  been  shown  to  have  been  that  of  the 
constitution,  into  a  geographical  idea,  which  is  altogether 
foreign  to  the  reason,  spirit,  and  policy  of  this  provision  of 
the  constitution.  The  design  certainly  was,  to  give  to  any 
and  every  state,  foreign  to  our  confederacy,  a  right  to  come 
into  this  court  against  any  state  of  the  confederacy,  instead 
of  driving  it  into  the  prejudiced  courts  of  the  offending  state; 
to  keep  the  construction  of  our  national  acts  within  the  sphere 
of  the  national  tribunal;  and  to  prevent  the  multifarious  tribu- 
nals of  the  states  from  compromitting,  by  their  opposite  and 
conflicting  adjudications,  the  honour  and  peace  of  the  United 
States!  And  these  being  the  objects,  of  what  possible  conse- 
quence can  it  be  whether  \h&  foreign  state  be  on  this  conti- 


JANUARY  TERM  1831.  107 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
nent  or  off  it;  or  what,  may  be  its  local  habitation,  or  its 
name?  If  it  be  a  state  foreign  to  our  confederacy,  ac- 
knowledged by  the  executive  to  be  foreign  by  the  act  of  treat- 
ing with  it,  and  by  the  character  of  the  stipulations  contained 
in  those  treaties;  the  whole  policy  of  this  provision  in  the 
constitution  bears  upon  them  at  once,  in  full  force,  whatever 
may  be  their  place  of  residence,  or  their  physical  strength. 

Is  it  supposed,  that  the  fact  of  their  being  surrounded  by  the 
territory  of  the  United  States  destroys  their  character  of  a 
state,  and  a  foreign  state?  How  does  it  happen  that  this  effect 
was  not  produced  upon  the  Hanse  towns  in  Germany?  Ham- 
burg, now  the  head  of  these  free  towns,  is  surrounded  by  the 
dominions  of  Lower  Saxony.  They  are  all  embosomed  in  the 
territory  of  some  one  or  other  of  the  German  princes.  Yet 
are  they  states,  and  foreign  states,  with  a  separate  capacity 
of  self  government,  and  of  treating  with  other  foreign  states. 

It  is  not  the  local  position,  but  the  actual  allegiance,  which 
determines  the  question  oi  foreign  or  do7nestic,  with  regard 
to  states,  in  that  political  sense  in  which  the  judicial  clause 
presents  the  subject.  It  is,  we  respectfully  conceive,  looking 
at  the  subject  in  a  false  point  of  view,  to  say  that  they  cannot 
he.  foreign  but  must  be  domestic  states,  because  they  are  sur- 
rounded by  the  territory  of  the  United  States:  it  is  making  it 
a  geograjihical  instead  of  a  ijolitical  question.  It  has  hap- 
pened, in  divers  instances,  in  ancient  as  well  as  modern  times, 
that  the  same  place  has  been,  alternately ,  foreign  and  do- 
mestic as  its  actual  allegiance  has  varied,  without  any  regard 
to  its  local  situation.  The  Samnites  were  yet  a  free  and  sove- 
reign state,  after  the  country  all  around  them  had  been  redu- 
ced by  the  power  of  the  Roman  arms:  were  they,  because 
thus  surrounded  by  the  territories  of  Rome,  a  domestic  state 
of  Rome,  or  a  state  of  Rome  in  any  sense?  On  the  contrary, 
so  long  as  they  owed  allegiance  only  to  their  own  laws  they 
were  a  foreign  state.  But  they  lost  that  character  when  at 
length  they  bowed  to  the  superior  power  of  Rome;  they  were 
no  longer  ^foreign  state,  but  a  part  of  the  domestic  empire  of 
Rome.  Samnium  was  still  in  the  same  place:  it  was  not 
locality,  therefore,  that  stamped  the  character  of  foreign  or 
domestic  in  that  country,  but  allegiance  m^erely.  Ancient 
history  abounds  with  instances  of  this  kind- 


108  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
Let  US  come  down  to  more  modern  times.  England,  for  a 
long  time,  held  several  states  in  the  heart  of  France,  as  com- 
pletely surrounded  by  the  territory  of  France,  as  the  Cherokee 
territory  is  surrounded  by  the  territory  of  the  United  States; 
and,  considered geog7'aphicaUy  Tney^ely,^?,  essentially  and  inti- 
mately incorporated  with  France  as  the  Cherokee  country  with 
the  United  States.  Yet,  while  the  possession  by  England  con- 
tinued, these  towns  were  politically  foreign  to  France,  and 
polllically  domestic  to  England:  and  again,  the  same  towns, 
when  reconquered  or  relinquished  to  France,  became  domestic 
to  France,  and /oreigji  to  England,  Calvin's  Case,  7  Co.  21. 
Our  own  country  presents  us  with  another  illustration  of 
the  same  character,  which  occurred  during  our  last  war  with 
Great  Britain.  The  port  of  Castinc  was  a  do?nestic  port  of 
the  United  States:  but  it  was  seized  by  the  British  arms  in 
September  1814,  and  retained  under  that  allegiance  from  that 
time  till  the  treaty  of  peace  in  1815.  This  court  has  decided 
that  while  it  was  in  the  actual  allegiance  of  Great  Britain,  it 
was  2,  foreign  port.  It  was  restored  under  the  treaty  of  peace, 
and  again  became  a  domestic  p)ort.  The  United  States  vs. 
Rice,  4  Wheaton,  314.  The  same  question  came  under  the 
consideration  of  the  judge  of  the  first  circuit,  in  the  case 
of  the  United  States  vs.  Hayward,  2  Gal.  501,  2,  in  which 
Castine  was  in  like  manner  held  to  be,  for  the  time,  a  fo- 
reign port,  because  a  port  extra  ligeantiatn  reipublicx.  The 
judge,  in  pronouncing  the  opinion  of  the  court  in  that  case, 
following  the  principles  laid  down  by  Sir  William  Scott  in 
the  case  of  the  Foltina,  1  Dodson,  451,  says,  that  "  the  alle- 
giance to  Great  Britain  was  temporary,  and  the  possession  not 
that  fair  possession  which  gives  to  the  conqueror  2Jl^niim  et 
utile  dominium,  the  complete  and  perfect  ownership  of  pro- 
perty. It  could  only  be,  by  a  renunciation  in  a  treaty  of 
peace,  or  hy  possession  so  long  and  permanent  as  should  af- 
ford conclusive  proof  that  the  territory  was  altogether  aban- 
doned by  its  sovereign,  or  had  been  irretrievably  subdued, 
that  it  could  be  considered  as  incorporated  into  the  dominions 
of  the  British  sovereign."  On  this  view  qf  the  subject,  he 
did  not  consider  Castine  as  absolutely  within  the  dominions 
of  the  British  sovereign  and  incorporated  into  his  realm; 
though  he  did  consider  it  ^^  d,  foreign  port, pro  hoc  vice.  But 


JANUARY  TERM  1831.  109 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
had  the  possessio7i  been  relinquished  to  his  Britannic  ma- 
jesty by  a  treaty  of  peace, ov  had  his  possession  been  so  long 
and  j)ermanent  as  to  afford  satisfactory  evidence  of  its  relin- 
quishment to  him,  then  it  would  have  become  a  foreign 
port  absolutely,  and  have  been  incorporated  loith  the  British 
reahn:  yet  would  its  geographical  position  have  been  pre- 
cisely the  same  as  when  it  was  a  domestic  port  of  the  United 
States. "  Now  the  circumstances,  which  the  judge  of  the  first 
district  held  would  have  been  sufficient  to  have  stamped  a 
permanent  foreign  character  on  Castine,  exist,  in  far  fuller 
force,  with  regard  to  the  Cherokee  territory:  for  this  never 
has  been  in  the  possession  of  the  United  States,  nor  of  the 
states  individually,  nor  of  the  British  government  under 
whom  we  claim.  The  exclusive  possession  has  been,  from 
time  immemorial,  in  the  Cherokee  nation,  and  their  title  has 
been  acknowledged  again  and  again,  by  treaties  of  peace 
and  treaties  of  amity  and  cession. 

It  is  not  geographical  situation,  therefore,  but  political 
situation  which  is  to  determine  the  question  oi  foreign  state 
or  not,  under  the  judicial  clause  of  the  constitution  which  we 
are  now  considering. 

"But  they  lie  within  the  chartered  limits  of  Georgia." 
This  is  the  argument  which  is  supposed  to  dislodge  them 
from  all  their  pretensions  to  the  character  of  a  state,  and,  a 
fortiori,  of  a  foreign  state.  The  court  will  perceive  that 
this  is,  under  an  immaterial  change  of  terms,  the  only  objection 
which  we  have  just  been  considering;  for  if  their  lying  within 
the  territorial  limits  of  the  United  States  does  not  affect  the 
question  of  their  being  a  foreign  state,  their  lying  within  the 
territorial  limits  of  the  state  of  Georgia  can  no  more  affect  that 
question. 

"  They  lie  within  the  chartered  limits  of  Georgia?"  They 
lie  exactly  where  they  have  lain  for  a  time  long  antecedent  to 
the  existence  of  that  state,  and  very  probably,  long  antecedent 
to  the  existence  of  the  monarchy  from  which  that  state  de- 
rives its  charter.  They  have  owned  that  country  from  time 
immemorial:  whereas,  the  charter  which  gave  being  to  the 
state  of  Georgia  is  not  yet  an  hundred  years  old.  Where 
have  these  chartered  limits  been  during  all  the  time  that  these 
treaties  have  been  negotiating;  in  which  Georgia  as  one  of  the 


110  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
parties  has  been  constantly  acknowledging  that  the  territory 
belongs  to  the  Cherokees,  and  is  under  their  sole  and  exclu- 
sive jurisdiction?  These  chartered  limits  had  certainly  as 
much  vigour  and  magic  about  them  when  they  were  first  pre- 
scribed, as  they  have  at  this  day.  How  does  it  happen  that 
they  have  never  been  until  now  considered  by  the  British 
monarch  who  gave  the  charter,  by  his  subjects  who  took  it, 
nor  even  by  the  state  of  Georgia  who  succeeded  to  it,  as  af- 
fecting the  rights  of  the  Cherokees? 

The  Cherokees  were  no  parties  to  that  charter.  As  to 
them,  it  was  res  infer  alios  acta.  What  right  had  the  king 
of  England  to  grant  to  his  subjects  the  lands  which  the  com- 
mon father  of  the  human  family  had  previously  assigned  to 
their  people?  Was  it  the  right  of  discovery!  But  in  what 
chapter  of  the  law  of  nations  shall  we  find  any  such  right  re- 
cognized with  regard  to  a  country  which  was  previously  inhab- 
ited. The  first  discoverer  of  a  desert  island  or  country  may 
acquire  a  right  to  take  possession  of  it,  on  the  principle  of  trea- 
sure found  of  which  there  is  no  prior  owner.  But  no  such 
right  is  acquired  as  to  a  country  which  is  previously  possessed 
by  another  nation. 

I  am  aware  of  the  question  to  which  the  discover}'-  of  this 
western  world  has  given  rise  among  the  writers  on  the  law  of 
nations.  We  are  all  aware  of  the  monstrous  pretensions  of 
Pope  Alexander,  in  affecting  to  divide  a  great  part  of  the 
world  between  the  crowns  of  Castille  and  Portugal.  The  ab- 
surdity of  this  pretension  has  been  justly  exposed  by  all  the 
writers  of  any  authority  on  this  subject:  while  the  same  wri- 
ters have  given  a  colour  to  the  usurpations  practised  in  this 
hemisphere  which  philosophy  and  religion  must  equally  con- 
demn. 

Vattel,  one  of  the  most  humane  among  these  writers,  has 
given  a  colour  to  the  transaction  which  is  not  founded  in 
fact.  "  The  whole  earth,"  he  Says,  "  is  appointed  for  the  nou- 
rishment of  its  inhabitants,  but  it  would  be  incapable  of  doing 
it,  was  it  uncultivated.  Every  nation  is  then  obliged  by  the 
law  of  nature  to  cultivate  the  ground  that  has  fallen  to  its 
share."  After  noticing  the  ancient  Germans  and  modern  Tar- 
tars,  he  adds,  "there  are  others  who,  to  avoid  agriculture, 
would  live  only  by  hunting  and    their  flocks.      This   might 


JANUARY  TERM  1831.  Ill 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
doubtless  be  allowed  to  the  first  ages  of  the  world  when  the 
earth,  without  cultivation,  produced  more  than  was  sufficient 
to  feed  its  few  inhabitants.  But,  at  present,  when  the  human 
race  is  so  greatly  multiplied,  it  could  not  subsist  if  all  nations 
resolved  to  live  in  that  manner.  Those  who  still  retain  this 
idle  life,  usurp  more  extensive  territories  than  they  would 
have  occasion  for  were  they  to  use  honest  labour,  and  have, 
therefore,  no  reason  to  complain  if  other  nations  more  labo- 
rious and  too  closely  confined  come  to  possess  a  part.  Thus, 
though  the  conquest  of  the  civilized  empires  of  Peru  and 
Mexico  were  a  notorious  usurpation,  the  establishment  of 
many  colonies  on  the  continent  of  North  America  may,  on 
their  confining  themselves  within  bounds,  be  extremely 
lawful.  The  people  of  these  vast  countries  rather  overi-an  than 
inhabited  them.''     Vat.  B.  1,  c.  8,  §81. 

Again,  he  says  (B.  1,  c.  18,  §  209),  "  there  is  another  celebra- 
ted question  to  which  the  discover)'^  of  the  new  world  has  princi- 
pally given  rise.  It  is  asked  if  a  nation  may  lawfully  take  poss- 
ession of  a  part  of  a  vast  country,  in  which  there  are  found  none 
but  erratic  nations,  incapable  by  the  smallness  of  their  numbers 
to  people  the  whole?  We  have  already  observed  (§  81),  in 
establishing  the  obligation  to  cultivate  the  earth,' that  these 
nations  cannot  exclusively  appropriate  to  themselves  more 
lands  than  they  have  occasion  for,  and  which  they  are  now 
unable  to  settle  and  cultivate.  Their  removing  their  habi- 
tations through  these  immense  regions  cannot  be  taken 
for  a  true  and  legal  possession,  and  the  people  of  Europe,  too 
closely  pent  up,  finding  land  of  which  these  nations  are  in  no 
particular  want,  and  of  which  they  make  no  actual  or  constant 
use,  may  lawfully  possess  it,  and  establish  colonies  there. 
We  have  already  said,  that  the  earth  belongs  to  the  human  race 
in  general,  and  was  designed  to  furnish  it  with  subsistence:  if 
each  nation  had  resolved  from  the  beginning  to  appropriate  to 
itself  a  vast  country,  that  the  people  might  live  only  by  hunt- 
ing, fishing  and  wild  fruits,  our  globe  would  not  be  sufficient 
to  maintain  a  tenth  part  of  its  present  inhabitants.  People 
have  not  then  deviated  from  the  views  of  nature  in  confining 
the  Indians  within  narrow  liinits.  However,  we  cannot" 
help  praising  the  moderation  of  the  English  puritans  who 
settled  first  in  New  England,  who,  notwithstanding  their  being 


112  SUPREME  COURT. 

[The  Clierokee  Nation  vs.  The  Stale  of  Cieorgia.] 
furnished  with  &  charter  from  their  sovereign,  purchased  of 
the  Indians  the  lands  they  resolved  to  cultivaj,e.     This  laudable 
example  was  followed  by  Mr  William  Penn,  who  planted  the 
colony  of  Quakers  in  Pennsylvania." 

These  passages  have  furnished  an  argument  elsewhere,  in 
favour  of  the  claim  set  up  by  Georgia  to  the  lands  of  the  In- 
dians. Let  us  see  to  what  they  amount.  In  the  first  place, 
it  is  very  clear  that  the  author  does  not  put  the  European 
right  to  take  possession  of  this  country  on  the  ground  of  dis- 
coveri/,  as  against  the  natives,  but  on  an  entirely  difl'erent 
ground.  His  position  is,  that  the  earth  was  given  to  the  hu- 
man family  for  the  com.mon  subsistence  of  the  whole  race  of 
men,  and  that  it  is  the  duty  of  all  so  to  use  it  as  to  make  it 
capable  of  supporting  the  greatest  possible  number  of  human 
beings;  which,  he  says,  can  be  efi'ected  only  by  agriculture. 
From  this  principle,  he  deduces  the  conclusion,  that  when, 
by  an  over  crowded  population,  the  capacity  for  subsistence 
is  exhausted  in  Europe,  the  people  of  that  country,  extruded 
from  it  by  excess  of  numbers,  have  a  natural  right  to  seek 
some  other  part  of  the  world  where  the  land  is  more  abun- 
dant and  tlie  people  few,  or  where  the  roving  and  hunter 
habits  of  the  natives  leaves  the  earth  to  be  cultivated  by  those 
who  are  willing  to  do  it.  Without  stopping  to  question  the 
soundness  of  this  great  agrarian  law  of  nations,  or  remark- 
ing on  the  consequences  to  which  it  would  lead  among  the 
different  powers  of  Europe  themselves;  let  us  admit,  for  the 
sake  of  argument,  the  correctness  of  the  principle,  and  see  how 
far  it  justifies  the  original  intrusion  of  the  Europeans  into  this 
continent,  or  affects  the  question  now  before  the  court. 

The  law  stated  by  Vattel  is  the  law  of  necessity.  The 
people  of  Europe,  too  closely  thronged  and  jjent  up  to 
be  able  to  draw  a  subsistence  from  the  earth  there,  have  a  na- 
tural right  to  avoid  death  by  famine  by  seeking  to  draw  that 
subsistence  from  the  earth  here,  where  the  natives  had  more 
land  than  they  wanted:  and  this  is  the  justification  offered  by 
Vattel  for  the  establishment  of  European  colonies  in  North 
America. 

But  is  this  the  principle  on  which,  in  point  of  fact,  they 
were  established?  Was  it  the  too  dense  population  of  Spain 
and  Portugal,  which  stimulated  Columbus  to  his  voyages  of 


JANUARY  TERM  1831.  113 

[The  Cherokee  Nation  vs.  The  Slate  of  Georgia.] 
discovery,  or  which  incited  the  powers  of  Europe  to  rival 
him  in  his  wealth?  Was  it  the  over  crowded  population  of 
England  which  led  Sir  Walter  Raleigh  to  his  voyages  on  the 
coast  of  Virginia  and  Carolina;  and  finally  led  to  the  estab- 
lishment of  the  southern  colonies?  We  know  it  was  not: 
but  that  it  was  the  same  cno'i  sacra  fames  which  actuated 
Spain  and  Portugal;  and  which  is  at  work  at  the  present  mo- 
ment. Was  it  the  want  of  animal  subsistence  which  peopled 
New  England  with  Puritans?  We  know  it  was  not:  but  that 
it  was  for  conscience  sake  alone  they  sought  the  freedom  of 
these  wilds.  Was  it  animal  necessity  that  settled  Pennsyl- 
vania with  Quakers?  We  know  it  was  not:  but  that  it  was  for 
the  free  enjoyment  and  diffusion  of  the  religion  of  peace  that 
they  made  that  portion  of  the  desert  smile.  Had  this  agrarian 
principle,  for  which  Vattel  contends,  been  carried  throughout 
England,  Scotland  and  Ireland,  and  the  continent  of  Europe 
(since  it  is  as  justly  applicable  to  individuals  as  to  nations), 
there  could  and  would  have  been  no  necessity  to  seek  a  sub- 
sistence in  any  other  part  of  the  world.  No  one  colony  can, 
witli  any  colour  of  historical  truth,  be  said  to  have  been  set- 
tled on  the  principle  on  which  alone  Vattel  seeks  to  defend  it. 
But  suppose  {argumenti  gratia)  this  necessity  to  have  ex- 
isted, how  far  could  il  have  carried  us  according  to  Vattel's 
own  principles?  So  far 'only  as  to  have  accommodated  here  that 
part  of  the  starving  population  of  Europe  which  had  been 
pressed  out  by  its  redundance.'  For  the  same  author,  in  the 
chapter  just  quoted  (Sect.  208),  in  considering  the  right  of  a 
nation  to  take  possession  of  an  uninhabited  country,  limits 
that  right  to  such  an  extent  as  it  can  actually  2^eople  and 
cultivate.  But  were  the  charters  of  these  colonies  granted 
on  this  principle?  On  the  contrary,  they  extended  from  the 
Atlantic  to  the  Pacific  Ocean,  covering  an  area  that  would 
have  sustained,  by  cultivation,  the  whole  population  of  Europe. 
The  charter  of  Georgia  was  of  this  description.  It  stretched 
originally  from  the  mouths  of  the  Savannah  and  Alatamaha  to 
the  Pacific  ocean.  Was  this  immense  extent  of  country  ne- 
cessary for  the  support  of  the  starving  poor  of  the  British  do- 
minions; especially  after  the  other  vast  grants  which  had  been 
made  to  other  colonies?  Was  Great  Britain  in  a  condition, 
with  the  aid  even  of  her  whole  population,  to  settle  and  cul- 
P 


114  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
tivate  with   her  subjects,  these  almost  boundless  territories 
which  she  professed  to  have  granted,  or  even  the  hundredth 
part  of  them? 

Let  us  step  from  the  original  settlement  to  the  present  mo- 
ment. Is  Georgia  now  in  such  a  condition  to  settle  and  cultivate 
the  land  to  which  she  has  an  indisputable  title,  that  she  must 
seek  to  grasp  more;  and  eject  the  Cherokees  from  the  lands 
which  have  been  guarantied  to  them  by  the  United  States?  We 
know  that  she  is  in  no  such  condition, — under  no  such  ne- 
cessity. It  is  not  then  by  the  law  of  nations  that  she  can  vin- 
dicate either  her  original  charter  on  her  construction  of  it; 
or  her  present  pretensions. 

But  let  us  look  to  the  other  side.  The  author  whom  we 
have  been  considering  countenances  this  claim,  of  which 
he  treats,  only  as  against  the  Indian  tribes  in  the  hunter 
state;  as  to  whom  he  says,  the  necessitous  emigrants  from 
over  peopled  Europe  have  a  right  to  confine  those  I'oving 
tribes  ^^ within  narrower  limits:"  not  to  extirpate  them,  or 
even  to  expel  them;  but  merely  to  confine  these  hifniers 
loithin  narrower  limits.  But  this  is  no  longer  the  Qpndition 
of  the  Cherokees.  They  are  hunters  no  longer.  They  are 
doing  what  Vattel  says  it  is  tlie  duty  of  all  nations  to  do,  to 
draw  upon  the  earth,  by  cultivation,  for  the  support  of  life, 
and  thus  to  contribute  to  the  greatest  -possible  multiplication 
of  the  human  family;  and  they  have  now  no  more  land  than 
they  want.  The  principles,  then,  which  he  advances  as  to 
roving  tribes  in  the  hunter  state,  have  no  longer  any  appli- 
cation to  the  Cherokees;  and  even  if  they  had,  they  would 
not  justify  their  extirpation. 

But  farther:  these  people  are  connected  with  us  by  a  series 
of  solemn  treaties,  by  which  they  hold  their  land  under  the 
repeated  and  now  perpetual  guarantee  of  the  United  States. 
Is  it  to  a  people  in  this  condition  that  Vattel  applies  the  pass- 
ages which  we  have  been  considering?  Has  he  any  where 
maintained  that  the  faith  of  treaties  may  be  violated  towards 
such  a  people?     We  have  seen  the  reverse. 

There  is  nothing,  then,  on  the  one  side  or  the  other,  in  the 
original  necessities  of  England  or  in  the  present  necessities 
of  Georgia,  or  in  the  actual  situation  of  the  Cherokee  nation, 
which  gives  these  passages  from  Vattel  the  slightest  applica- 
tion to  the  case. 


JANUARY  TERM  1831.  115 

[The  Cherokee  Nation  vs.  The  Stale  of  Georgia.] 
We  have  seen  that  the  alleged  right  by  discovery  has  no 
place  in  the  law  of  nations,  except  with  regard  to  uninhabited 
and  desert  places.  With  regard  to  such  places,  against  whom 
is  the  right  asserted?  Necessarily  against  subsequent  discov- 
erers only.  In  relation  to  inhabited  countries,  even  though 
the  inhabitants  be  in  the  hunter  state,  this  right  by  discovery 
has  no  plea,  except  with  regard  to  the  starving  superflux 
shaken  off  by  the  too  crowded  population  of  the  old  world; 
and  then  only  according  to  the  measure  of  their  actual  necessi- 
ties. If  the  sovereigns  of  Europe  have  asserted  a  larger  right 
by  discovery  to  this  western  world,  that  right  is  not  to  be 
found  in  the  natural  law  of  nations:  if  it  belong  to  the  con- 
ventional branch  of  that  law,  it  binds  those  only  who  are  par- 
ties to  such  conventions.  Vattel,  Preliminary  Rem.  §  24. 
I  know  that  in  the  case  of  Johnson  and  M'Intosh,  8  Wheaton, 
598,  9,  this  court  has  said,  that  it  is  not  for  the  courts  of  the 
country  which  asserts  this  kind  of  title,  to  dispute  it.  But 
since  the  title  is  not  to  be  found  in  the  law  of  nations;  has  no 
foundation  in  natural  justice;  and  exists  only  in  the  assertions 
of  the  monarchs  of  Europe,  the  courts  of  the  country  will 
not  extend  it  beyond  their  assertion.  Let  us  see,  then,  the 
title  which  has  been  asserted. 

The  English  monarch  asserted  the  right  to  grant  the  char- 
ters which  he  did  grant.  Did  he  assert  thereby  a  right  to  ex- 
clude the  original  inhabitants  from  their  possessions,  or  to  inter- 
fere with  their  self  government?  This  is  the  right  which 
Georgia  professes  to  derive  from  her  charter.  Does  her  char- 
ter convey  it?  Is  such  the  proper  construction  of  that  in.stru- 
ment?  The  charter  is  now  precisely  what  it  was  before  our 
revolutionary  war,  while  it  was  held  by  British  subjects. 
Georgia  claims  to  have  succeeded  by  the  revolution  to  their 
rights,  and  only  to  their  rights.  If  the  right  of  the  Cherokees 
to  hold  and  govern  their  territory  be  incompatible  with  that 
charter  now,  it  has  always  been  incompatible  with  it.  But 
was  such  a  principle  ever  asserted  either  by  the  British  mon- 
archs or  by  their  grantees.  Contemporaneous,  long  settled,  and 
uniform  exposition  has  always  been  held  conclusive  in  such 
a  case:  and  this  exposition  will  conduct  us  to  a  conclusion  di- 
rectly at  war  with  the  pretensions  of  Georgia. 

The  British  monarch  carried  his  pretended  right  of  discovery 


116  SUPREME  COURT, 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

to  the  utmostextent  to  which  thishonourable court  willfoUow  it. 
He  asserted  that  right  agahisi  all  other  discoverers.  He  ex- 
cluded them  from  acquiring  lauds  in  this  quarter  by  treaties  of 
concession  from  the  Indian  sections.  He  insisted  on  monopoliz- 
ing the  market:  but  he  asserted  this  monopoly  only  against 
other  foreign  nations.  Against  the  Indians  themselves,  he 
asserted  no  other  title  than  that  of  a  right  to  purchase  such 
parts  of  their  lands  as  they  chose  voluntarily  to  cede.  He 
asserted  no  right  to  drive  them  from  their  lands  by  force,  nor 
to  interfere  loith  their  self  government;  he  could,  there- 
fore, have  intended  to  convey  no  such  right  by  his  charter; 
nor  has  it  ever  been  pretended,  until  recently,  that  the  char- 
ter comprised  any  such  power.  The  British  monarch  never 
claimed  the  Indians  as  his  subjects.  He  never  claimed  their 
allegiance.  He  never  interfered  with  their  self  government. 
He  always  regarded  them  as  a  separate  people;  and  treated 
with  them  as  a  sovereign  people,  who  were  at  perfect  liberty 
to  cede  or  to  retain  their  lands,  as  they  pleased. 

A  brief  reference  to  the  operations  of  the  British  colonists, 
under  this  charter,  will  place  this  subject  in  a  light  too  clear 
to  be  mistaken. 

The  first  company  who  crossed  the  Atlantic,  under  this 
charter,  arrived  at  the  present  site  of  Savannah  under  Gene- 
ral Oglethorpe,  in  1733.  According  to  the  present  claim  of 
Georgia,  all  the  lands  within  the  limits  of  that  charter  belonged 
to  these  colonists:  and  the30iad  nothing  more  to  do  than  to 
take  the  possession  and  to  claim  the  allegiance  of  the  Indians 
as  a  conquered  people,  and  a  part  of  the  subjects  of  his  Britan- 
nic majesty.  Had  any  such  arrogant  pretension  been  set  up, 
this  conquered  people,  the  lords  of  the  forest,  could,  and 
probably  would  have  crushed  the  puny  colony  with  as  much 
ease  as  they  could  have  crushed  the  serpents'  eggs  around 
them.  But  general  Oglethorpe  understood  the  charter  as  his 
sovereign  understood  it.  "  ,j1  treaty  was  held  witli  the 
Creek  Indians,  to  whom  the  lands  loere  admitted  to  belong, 
and  the  cession  of  a  considerable  tract  was  obtained  from 
them.''    1  Marshall's  Life  of  Washington,  226. 

Will  it  be  said  that  this  was  the  efi'ect  of  weakness  and  the  want 
of  ability  on  the  part  of  the  colonists  to  assert  their  rights? 
How  does  this  comport  with  the  idea  that  the  Indians  were  a 


JANUARY  TERM  1831.  117 

[The  Cherokee  Nation  vs.  The  Stale  of  Georgia.] 
conquered  people?  But  it  was  not  the  effect  of  weakness.  It 
was  the  effect  of  principle.  It  flowed  from  the  universal  un- 
derstanding that  the  land  belonged  to  the  Indians,  and  could 
be  rightfully  obtained  from  them  only  by  voluntary  cession. 
We  have  the  proof  of  this  by  another  treaty  made  by  the 
officers  of  his  Britannic  majesty  with  the  Cherokee  and  Creek 
nations  of  Indians,  in  1773,  just  before  the  commencement  of 
our  revolutionary  war;  at  a  time  when  the  colonists  were  in 
sufficient  force  to  have  asserted  these  alleged  rights  against 
the  Indians,  if  they  had  been  supposed  to  exist.  This  is  the 
treaty  of  Augusta,  to  be  found  in  Crawford  and  Marbury's 
edition  of  the  Laws  of  Georgia  (Appendix,  page  600).  Your 
honours  will  observe  that  this  was  the  purchase  of  another 
cession  of  the  Indian  lands.  You  will  observe  the  solicitude 
of  the  British  commissioners  to  protect  themselves  against  the 
imputation  of  force  or  fraud,  by  the  solemn  and  emphatic 
assertion  and  reiteration  of  the  fact,  that  this  treaty  was  made 
at  the  earnest  solicitation  of  the  Indians  themselves,  loho 
were  anxious  to  raise  a  fund  for  the  jjaymcnt  of  their  debts 
to  their  traders.  And  you  will  observe,  what  is  quite  as 
much  to  our  purpose,  the  striking  manner  in  which  the  Indians 
are  contradistinguished  from  the  subjects  of  his  Britannic 
tnajesty,  as  we  have  seen  they  have  since  ever  been  from 
the  citizens  of  the  United  States. 

[Here  Mr  Wirt   read  the  preamble  and  provisions  of  the 
treaty.] 

How  can  we  reconcile  this  treaty  with  the  position  that  the 
charter,  by  its  own  proper  vigour,  had  before  transformed  those 
Indians  into  subjects  of  the  British  king,  and  made  their  lands 
the  property  of  the  British  crown?  Again.  The  state  of  Geor- 
gia joined  the  confederation  of  the  United  States  in  1778.  In 
the  year  1783,  that  state  herself  made  a  treaty  with  the  Che- 
rokee Indians,  in  which  their  title  is  admitted,  and  the  Chero- 
kees  are  again  contradistinguished  from  the  inhabitants  of 
Georgia,  as  they  had  been  before  from  the  subjects  of  the 
British  king.  Then  follow  immediately  the  treaties  of  Hope- 
well, Holston,  and  others,  down  to  the  present  time,  which  we 
have  already  considered:  and  your  honours  will  thus  per2eive, 
that  from  the  date  of  the  charter  of  Georgia  to  this  day,  under 
every  change  of  government,  it  has  never  been  considered  as 


118  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia] 

affecting  the  Indian  possession  and  right  of  self  government 
within  their  unceded  territory. 

The  state  of  Georgia  considers  her  charter  as  an  absolute 
and  ini7nediate  grant  of  the  present  right  of  possession  and 
present  right  of  jurisdiction,  over  all  the  lands  luithin  the 
limits  of  that  charter.  It  is  upon  this  construction  of  it 
alone  that  she  defends  her  present  course.  But  is  this  the  true 
construction  of  it,  with  regard  to  the  native  Indians?  The 
charter  must  receive  a  construction  according  to  the  title,  and 
the  intention  of  the  grantor.  But  the  court,  finding  no 
foundation  for  his  title  in  the  law  of  nature  or  nations  as  ap- 
plied to  the  facts  of  the  case,  have  said  that  they  must  respect 
the  title  as  alleged  and  maintained  by  the  government  to 
luhich  they  belong,  and  by  the  antecedent  government  under 
whom  we  claim. 

Try  the  charter  by  this  title,  and  the  pretension  of  Georgia 
is  at  an  end;  for  neither  the  British  king  who  gave  the  char- 
ter, nor  the  colony  which  received  it,  ever  pretended  to 
regard  it  as  an  absolute  and  immediate  grant  of  the  pre- 
sent right  of  possession  and  the  present  7'ight  of  jurisdic- 
tion, over  all  the  lands  within  the  limits  of  that  charter. 
The  state  of  Georgia  did  not  so  regard  it,  when  she  made  her 
treaty  with  the  Indians  in  1783.  She  did  not  so  regard  it 
when,  as  a  component  part  of  the  United  States,  she  made  her 
treaty  of  Hopewell  in  1785;  her  treaty  of  Holston  in  1791: 
and  all  the  subsequent  treaties  down  to  the  present  time.  She 
did  not  so  regard  it  when,  in  the  year  1802,  she  ceded  her 
back  lands  to  the  United  States,  on  the  express  condition  that 
the  United  States  should  extinguish,  as  soon  as  it  could  be 
done  peaceably  and  on  reasonable  terms,  the  Indian  title 
to  all  the  lands  ivithin  her  remaining  limits:  thus,  clearly, 
admitting  the  subsistence  of  the  India  title,  until  it  should  be 
extinguished,  peaceably  and  on  reasonable  terms,  by  a  volun- 
tary cession  from  the  Indians  themselves. 

The  United  States,  the  government  to  which  this  court 
immediately  belongs,  have  never  considered  the  charter  of 
Georgia  as  an  absolute  and  immediate  grant  to  that 
state,  of  the  present  right  of  possession,  and  the  pre- 
sent right  of  jurisdiction,  over  all  the  lands  within  the 
limits   of  that   charter.     The   whole  body  of  our  treaties 


JANUARY  TERM  1831.  119 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

disprove  it.  They  admit  on  the  contrary  the  present  right 
of  possession,  and  the  present  right  of  self  government  by 
the  Indians;  and  the  continued  subsistence  of  those  rights 
in  them,  until  they  shall  be  voluntarily  relinquished.  They 
not  only  admit  the  Indian  right  of  possession,  but  they 
have  solemnly  pledged  the  faith  and  honour  of  the  United 
States  to  guaranty  it  by  force  of  arms.  Thus,  the  executive 
of  Great  Britain,  the  executive  of  the  state  of  Georgia,  and  the 
executive  of  the  United  States  have  all  concurred  in  disaffirming 
the  construction  now  placed  by  Georgia  upon  her  charter;  and 
in  affirming  the  adverse  right  of  possession  and  jurisdiction  of 
the  Indians. 

The  legislative  branch  of  the  government  of  Georgia  did 
the  same  thing  by  their  cession  to  the  United  States  in  1802. 

The  legislative  branch  of  the  government  of  the  United 
States  have  continually  done  the  same  thing.  All  the  laws  of 
congress  for  regulating  the  intercourse  with  the  Indian  tribes, 
from  the  year  1790  down  to  this  day,  have  done  the  same, 
and  take  exactly  the  ground  of  the  treaties  which  we  have 
been  considering.  The  intercourse  act  of  1802  unites  all  the 
provisions  and  deserves  particular  notice. 

The  act  is  entitled  "  an  act  to  regulate  trade  and  intercourse 
with  the  Indian  tribes,  and  to  preserve  peace  on  the  frontier.'' 
2  Story's  Laws  U.  S.  p.  838. 

It  begins  with  a  description  of  the  boundary  between  the 
United  States  and  the  Indian  tribes,  and  provides  ''that  \i the 
boundary  betiveen  the  said  Indian  tribes  and  the  United 
States  shall  at  any  time  hereafter  be  varied  by  any  treaty, 
which  shall  be  made  between  the  said  Indian  tribes  and  the 
United  States,  then  all  the  provisions  contained  in  this  act 
shall  be  construed  to  apply  to  the  line  so  to  be  varied,  &c." 
This  line  is  here  called  the  boundary  between  the  Indian 
tribes  and  the  United  States,  thus  not  considering  the  Indian 
tribes  as  not  loithin  the  United  States,  in  the  political  view 
of  the  subject,  in  that  view  in  which  the  states  of  the  union 
are  within  the  United  States.  But  the  laws  of  Georgia  have 
beaten  down  the  treaty  boundary;  have  in  fact  annihilated  it; 
and  declared  these  Indians  to  be  within  the  state  of  Georgia, 
and  the  lands  they  occupy  to  be  part  of  the  un granted  lands  of 
that  state. 


120  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  Stale  of  Georgia.] 

The  second  section  of  the  act  makes  it  penal  in  a  citizen, 
or  other  person  resident  within  the  United  States,  to  cross 
over  or  go  within  that  boundary  to  hunt  or  otherwise  destroy 
the  game,  or  to  drive  or  carry  stock  to  range  on  those  lands. 
The  state  of  Georgia  has  by  her  late  laws  repealed  and  an- 
nulled this  provision  of  a  law  of  the  United  States,  and 
authorised  her  citizens  to  cross  the  boundary,  not  only  to  hunt 
the  game,  but  to  hunt  the  Indians  themselves,  to  arrest,  im- 
prison and  even  to  execute  them. 

The  third  section  makes  it  penal  for  any  such  citizen  to  go 
into  the  Indian  country  without  a  passport.  This  also  the 
state  of  Georgia  has  annulled. 

The  fourth  section  recognizes  the  Indian  territory  to  be  not 
within  the  jurisdiction  of  the  states,  very  nearly  in  the  words 
of  the  eleventh  article  of  the  treaty  of  Holston.  It  is  in  these 
words : 

*'  If  any  such  citizen  or  other  person  shall  go  into  ani/ 
town,  settlement,  or  territory  belonging,  or  secured,  hy 
treaty  with  the  United  States,  to  any  nation  or  tribe  of 
Indians,  and  shall  there  commit  robbery,  larceny,  trespass, 
or  other  crime,  against  the  person  or  property  of  any  friendly 
Indian  or  Indians,  which  would  be  punishable,  if  committed 
within  the  jurisdiction  of  any  state,  against  a  citizen  of  the 
United  States:  or  unauthorised  by  law,  and  with  a  hostile  in- 
tention, shall  be  found  on  any  Indian  land,  such  oflender 
shall  forfeit  a  sum  not  exceeding  one  hundred  dollars,  and  be 
imprisoned  not  exceeding  twelve  months;  and  shall  also  when 
property  is  taken  or  destroyed,  forfeit  and  pay  to  such  Indian 
or  Indians,  to  whom  the  property  taken  and  destroyed  belongs, 
a  sum  equal  to  twice  the  just  value  of  the  property  so  taken 
or  destroyed:  and  if  such  offender  shall  be  unable  to  pay  a  sum 
at  least  equal  to  the  said  just  value,  whatever  such  payment 
shall  fall  short  shall  be  paid  out  of  the  treasury  of  the  United 
States,  &c.'' 

Here  is  an  express  acknowledgement  that  all  towns,  settle- 
ments, and  territories  acknowledged  by  the  treaties  of  the 
United  States  to  belong  to  the  Indians,  do  in  fact  belong  to 
them,  and  are  not  loithin  the  jurisdiction  of  any  state.  The 
towns,  settlements,  and  territories  of  the  Cherokees  are  ac- 
knowledged by  the  treaty  of  Holston  to  belong  to  them:  they 


JANUARY  TERM  1831.  121 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
are  consequently  here,  as  well  as  in  the  treaty  of  Holston,  ad- 
mitted to  be  oiof  within  the  jurisdiction  of  any  state:  but 
the  state  of  Georgia,  placing  herself  in  direct  opposition  both 
to  this  law  and  to  the  treaty,  declares  that  the  Cherokee  terri- 
tory is  within  her  jurisdiction;  and  she  has  seized  upon  that 
territory  and  its  jurisdiction  in  defiance  of  the  treaties,  laws, 
and  constitution  of  the  United  States. 

By  the  fifth  section  of  the  act  it  is  provided,  ^'  that  if  any 
such  citizen  or  other  person  shall  make  a  settlement  on  any 
lands  belonging,  secured,  or  granted,  by  treaty  with  the 
United  States,  to  any  Indian  tribe,  or  shall  survey,  or  at- 
tempt to  survey  such  lands,  or  designate  any  of  the  bounda- 
ries by  marking  trees,  or  otherwise,  such  offender  shall  for- 
feit a  sum  not  exceeding  one  thousand  dollars,  and  suffer 
imprisonment  not  exceeding  twelve  months.  And  it  shall, 
moreover,  be  lawful  for  the  president  of  the  United  States  to 
take  such  measures,  and  employ  such  military  force,  as  he 
may  judge  necessary,  to  remove,  from  lands  belonging  or  se- 
cured by  treaty  diS  aforesaid  to  any  Indian  tribe,  any  such 
citizen  or  other  person,  who  has  made,  or  shall  hereafter 
make  or  attempt  to  make  a  settlement  thereon." 

Here  is  a  law  made  by  congress  under  the  authority  of  the 
constitution  of  the  United  States,\vhich  gives  to  congress  the 
exclusive  power  of  regulating  intercourse  with  the  Indian 
tribes,  made  in  strict  conformity  with  our  public  treaties  with 
those  tribes,  forbidding  certain  things  to  be  done  under  heavy 
penalties  "and  authorizing  the  president  to  prevent  them  by 
the  employment  of  the  military  force  of  the  United  States; 
and  it  is  but  to  refer  to  the  laws  of  Georgia  annexed  to  the 
bill  to  see  that  the  things  thus  forbidden,  and  which  the  presi- 
dent is  required  to  prevent,  are  the  very  things  which  that 
state  has  authorized  and  required  to  be  done  by  her  officers. 
The  authority  given  to  the  president  to  prevent  these  things 
is  a  command,  according  to  all  the  constructions  of  such  a  law; 
yet,  according  to  the  bill,  that  officer  has  said  that  he  has  no 
power  to  interfere  with  the  laws  of  Georgia.  There  can  be 
no  doubt,  therefore,  that  Georgia  will  do  what  this  law  as 
well  as  our  public  treaties  has  forbidden,  unless  prevented  by 
the  authority  of  this  honourable  court. 

It  is  needless  to  detain  the  court  with  a  further  examination 
Q 


122  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
in  detail  of  the  several  provisions  of  this  law.  It  contains 
twenty-two  sections,  and  there  is  not  one  of  them  which  does 
not  disaffirm  the  construction  given  by  the  state  of  Georgia  to 
her  charter,  by  admitting  the  exclusive  right  of  possession  by 
the  Indians  within  their  boundaries,  and  their  sovereign  right 
of  self  government  within  their  own  territory. 

Having  thus  seen  the  views  which  have  been  always  hith- 
erto taken  of  this  subject,  both  by  the  executive  and  legisla- 
tive branches  of  the  government  of  the  United  States,  let  us 
now  turn  to  the  judicial  branch. 

In  the  case  of  Fletcher  and  Peck,  6  Cranch  142,  2  Peters's 
Cond.  Rep.  208,  the  court  had  not  occasion  to  analyze,  severely, 
the  character  of  the  Indian  title.  The  opinion  concludes  with 
these  words:  "the  majority  of  the  court  is  of  opinion,  that  the 
nature  of  the  Indian  title,  which  is  certainly  to  be  respected  by 
all  courts  until  it  be  legitimately  extinguished,  is  not  such  as 
to  be  absolutely  repugnant  to  seisin  in  fee  on  the  part  of  the 
state."  Mr  Justice  Johnson  dissented  from  this  opinion.  He 
denies  that  the  state  of  Georgia  has  a  seisin  in  fee  in  the  Indian 
lands.  "To  me  it  appears,  he  says,  that  the  interest  of 
Georgia  in  that  land  amounted  to  nothing  more  than  a  mere 
possibility ,  and  that  her  conveyance  thereof  could  operate 
only  as  a  covenant  to  convey  or  to  stand  seised  to  a  use. "  In 
a  subsequent  part  of  the  opinion,  he  says,  in  speaking  of  the 
tribes  to  the  west  of  Georgia,  of  whom  the  Cherokees  are  one, 
"  we  legislate  upon  the  conduct  of  strangers  or  citizens  within 
their  limits,  but  innumerable  treaties  formed  loith  them  ac- 
knowledge them  to  be  an  independent  jieople;  and  the  uni- 
form practice  of  acknoioledging  their  right  of  soil,  by  pur- 
chasing from  them  and  restraining  all  persons  from  en- 
croaching upon  their  territory,  makes  it  unnecessary  to  in- 
sist upon  their  right  of  soil.  Can  then  one  nation  be  said 
to  be  seised  of  a  fee  simple  in  lands,  the  right  of  soil  of 
which  is  in  another  nation?  It  is  awkward  to  apply  the  tech- 
nical idea  of  a  fee  simple  in  lands  to  the  interests  of  a  nation, 
but  I  must  consider  an  absolute  right  of  soil,  as  an  estate 
to  them  and  their  heirs.^^ 

In  this  case,  then,  we  have  a  majority  of  the  court  admitt- 
ing that  the  Indian  title  was  to  be  respected  by  all  courts  until 
it  should  be  legitimately  extinguished ;  and  we  have  the  other 


JANUARY  TERM  1831.  123 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
judge  declaring  that  innuinerable  treaties  acknowledge  these 
people  to  be  an  independent  people,  a  nation  possessed  of  an 
absohite  right  in  the  soil  to  themselves  and  their  heirs,  and 
of  the  sovereign  right  of  governing  themselves  ivithin  their 
own  territory. 

But  it  was  in  the  case  of  M'Intosh  and  Johnson,  8  Wheaton, 
573,  that  the  court  were  called  upon  to  make  a  more  pro- 
found and  careful  investigation  of  the  character  of  the  Indian 
title.  The  immediate  question  in  that  case  was  whether 
a  grant  made  by  Indian  tribes  or  nations,  north  west  of 
the  Ohio,  to  pi'ivate  individuals,  was  a  valid  grant,  and 
could  be  successfully  asserted  against  the  United  States,  to 
whom  the  same  Indian  tribe  had  subsequently  ceded  the  same 
lands.  It  was  in  this  case  that  the  court  entered  upon  the 
examination  of  the  title  by  discovery  as  understood  among 
the  potentates  of  Europe.  "On  the  discovery  of  this  immense 
continent,"  say  the  court,  "the  great  nations  of  Europe  were 
eager  to  appropriate  to  themselves  so  much  of  it  as  they  could 
respectively  acquire.  Its  vast  extent  ojQfered  an  ample  field  to 
the  ambition  and  enterprize  of  all;  and  the  character  and  re- 
ligion of  its  inhabitants  afforded  an  apology  for  considering 
them  as  a  people  over  whom  the  superior  genius  of  Europe 
might  claim  an  ascendency.  The  potentates  of  the  old 
world  found  no  difficulty  in  convincing  themselves  that  they 
made  ample  compensation  to  the  inhabitants  of  the  new,  by 
bestowing  on  them  civilization  and  Christianity  in  exchange 
for  unlimited  independence.  But  as  they  were  all  in  pur- 
suit of  nearly  the  same  object,  it  was  necessary,  in  order  to 
avoid  conflicting  settlements  and  consequent  war  with  each 
other,  to  establish  a  principle  which  all  should  acknowledge  as 
the  law  by  which  the  right  of  acquisition,  which  they  all  as- 
serted, should  be  regulated  as  between  themselves.  This 
principle  was,  that  discovery  gave  title  to  the  government  by 
whose  subjects  or  by  whose  authority  it  was  made,  against 
all  other  European  governments,  which  title  might  be  con- 
summated by  possession. 

"  The  exclusion  of  all  other  Europeans  necessarily  gave 
to  the  nation  making  the  discovery  the  sole  right  of  acquiring 
the  soil  from  the  natives,  and  establishing  settlements  upon 
it.     It  Avas  a  right  with  which  no  Europeans  could  interfere. 


124  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
It  was  a  right  which  all  asserted  for  themselves,  and  to  the 
assertion  of  which  by  others,  all  assented. 

<'  Those  relations  which  were  to  exist  between  the  disco- 
verers and  the  natives  were  to  be  regulated  by  themselves. 
The  rights  thus  acquired  being  exclusive,  no  other  power 
could  interpose  between  them. 

« In  the  establishment  of  these  relations,  the  rights  of  the 
original  inhabitants  were  in  no  instance  disregarded,  but  were 
necessarily  to  a  considerable  extent  impaired.  They  loere  ad- 
mitted to  be  the  rightful  occupants  of  the  soil,  with  a  legal 
as  well  as  just  claim  to  retain  possession  of  it,  and  to  use  it 
according  to  their  own  discretion:  but  their  rights  to  com- 
plete sovereignty,  as  independent  nations,  were  necessarily 
diminished;  and  their  power  to  dispose  of  the  soil  at  their 
own  will,  to  whomsoever  they  pleased,  was  denied  by  the 
original  fundamental  principle,  that  discovery  gave  exclusive 
title  to  those  who  made  it. 

"While  the  different  nations  of  Europe  respected  the  right 
of  the  natives  as  occupants,  they  asserted  the  ultimate  domi- 
nion to  be  in  themselves;  and  claimed  and  exercised  as  a  con- 
sequence of  the  ultimate  dominion  a  power  to  grant  the  soil 
while  yet  in  possession  of  the  natives.  These  grants  have 
been  understood  by  all  to  convey  a  title  to  the  grantees,  sub- 
ject only  to  the  Indian  right  of  occupancy . 

<^  The  history  of  America  from  its  discovery  to  the  present 
day  proves,  we  think,  the  universal  recognition  of  these  prin- 
ciples." 

The  court  then  proceeded  to  an  examination  of  this  history. 

We  have  here  the  whole  front  and  extent  of  this  title  by 
discovery:  and  to  what  does  it  amount.''  To  this  only;  that 
the  first  European  discoverer  of  any  part  of  this  continent  had 
the  exclusive  right  to  become  the  purchaser  of  the  soil  from 
the  natives  to  whom  it  was  admitted  to  belong.  Not  to  take 
it  from  them  by  force;  not  to  compel  them  to  sell  it:  for,  <<  they 
were  admitted,  say  the  court,  to  be  the  rightful  occu- 
pants of  the  soil,  with  a  legal  as  well  as  just  claim  to  retain 
the  p)ossession  of  it,  and  to  use  it  according  to  their  own 
discretion. "  Although  tiiey  are  here  called  occupants,  it 
was  not  a  permissive  occupancy ,  at  the  pleasure  of  the  dis- 
coverer: it  was  not  a  temporary  occupancy,  to  be  determined 


JANUARY  TERM  1831.  125 

[The  Cherokee  Nation  vs.  The  State  of  Georgia,] 
at  his  pleasure:  it  was  a  rightful  occupancy ,  with  a  legal 
as  well  as  just  claim  to  retain  the  possession  of  it,  and  to 
use  it  according  to  their  own  discretion  so  long  as  they  should 
think  proper  to  retain  it.  In  the  language  of  judge  Johnson, 
in  the  case  of  Fletcher  and  Peck,  it  was  an  estate  to  them  and 
their  heirs,  to  be  determined  only  at  their  own  pleasure. 

Nor  were  they,  according  to  this  opinion  of  the  court 
in  the  case  of  M'Intosh  and  Johnson,  limited  to  the  mere 
right  of  hunting  upon  the  land;  on  the  contrary,  they  had  a 
legal  as  well  as  a  just  right  to  use  it  according  to  their  own 
discretion,  so  long  as  they  should  think  proper  to  retain  it: 
they  had  then  a  legal  and  just  right  to  fell  the  timber,  to 
clear  and  cultivate  the  land,  to  build  upon  and  improve  it, 
to  dig  for  ore;  in  short  to  exercise  every  act  of  complete 
ownership  over  it,  so  long  as  they  should  choose  to  retain 
the  possession.  If  they  thought  proper  thus  to  retain  and 
use  ii,for  ever,  to  them  and  their  heirs;  they  had  a  legal  and 
just  right  to  do  so.  The  discoverer  claimed  no  right  to  in- 
terfere with  the  possession  or  use  it  until  it  should  be  vol- 
untarily ceded  to  hiin  by  the  natives.  His  assertion  of 
right  was  only  against  other  Europeans.  He  would  not  suffer 
them  to  purchase  of  the  natives.  He  claimed  the  right  of 
purchase  exclusively  for  himself.  Hence  he  called  himself 
the  proprietor  of  the  ultiriiate  domain.  But  this  ultim,ale 
domain  gave  him  no  right  to  disturb  the  Indian  possession 
and  enjoyment.  His  ivas  a  domain  which  might  never 
come  into  actual  fruition.  For  the  Indians  were  not  to  be 
constrained  to  sell.  No  actual  or  moral  force  was  to  be  ap- 
plied to  constrain  them  to  that  conclusion.  For  as  the}'^  had 
a  legal  as  ivell  as  a  just  right  to  retain  the  possession  as 
long  as  they  pleased,  and  to  use  the  land  according  to  their 
own  discretion;  it  would  have  been  as  illegal  and  unjust  to 
place  them  under  any  moral  coercion  to  sell  by  disturbing 
and  annoying  them  in  the  enjoyment,  as  to  wrest  it  from 
them  by  force. 

Such  was  the  title  by  discovery  asserted  by  the  British 
monarch,  under  whom  Georgia  claiins  her  charter.  By  virtue 
of  this  ultimate  domain  which  has  been  described,  he  claimed 
the  right  to  grant  the  land,  while  yet  in  the  Indian  occu- 
pancy.    He   did  grant  this  portion  of  it  by  charter  to  the 


126  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  Stale  of  Georgia.] 
Georgia  compan3\  What  title  did  they  take  by  that  charter? 
The  court  answer  the  question  in  the  passage  which  has 
been  quoted:  they  took  a  title  subject  to  the  Indian  occupancy : 
that  is  to  say,  according  to  the  explanation  given  of  this  occu- 
pancy by  the  court,  subject  to  the  legal  and  just  claim  of 
the  Indians  to  retain  the  possession  as  long  as  they  pleased, 
and  to  use  the  land  according  to  their  own  discretion.  How 
does  this  comport  with  the  construction  now  for  the  first  time 
placed  by  Georgia  on  her  charter,  and  with  the  laws,  annexed 
to  the  bill,  which  she  has  passed  under  that  construction? 

In  adverting  to  this  exclusive  claim  of  the  discovering  poten- 
tate to  purchase  their  land  from  the  natives  whenever  they 
should  be  disposed  to  sell,  and  the  consequent  invalidity  of  a 
sale  made  by  them  to  private  individuals;  the  court  say,  far- 
ther, ^'theirrights  (those  of  the  nvitivQs)to  comjjlete  sovereignty 
as  independent  nations  were  diminished,  and  their  power  to 
dispose  of  the  soil  at  their  own  will  to  whomsoever  they 
pleased  was  denied  by  the  original  fundamental  principle,  that 
discovery  gave  exclusive  title  to  them  who  made  it:"  that  is, 
exclusive  title  to  acquire  the  lands  from  the  natives,  because 
their  legal  and  just  claim  to  retain  the  land  as  long  as  they 
pleased  had  just  been  admitted.  But  their  rights  to  complete 
sovereignty  as  independent  nations  were  diminished  in  no 
other  particular,  than  by  that  tacit  convention  established 
among  the  potentates  of  Europe,  that  they  would  not  interfere 
with  each  other's  discoveries,  but  leave  to  the  discoverer  the 
exclusive  right  to  purchase  of  the  natives  within  the  bounds  of 
his  discovery.  They  could  not  sell  to  others,  because  all  others 
had  agreed  to  forbear  to  purchase.  Did  this  conspiracy  of 
the  monarchs  of  Europe,  to  throw  into  each  other's  hands  the 
exclusive  market  in  Indian  lands,  divest  these  natives  of  the 
political  character  of  states  and  sovereign  states,  in  the  es- 
timate of  the  law  of  nations?  We  see  that  it  did  not,  if  they 
retained  the  right  to  govern  themselves  by  their  own  laws 
within  their  own  territory,  with  the  right  of  making  legi- 
timate war  even  upon  these  discoverers  themselves:  and  these 
rights  we  have  further  seen  that  they  did  retain. 

There  is  another  passage  in  the  opinion  of  the  court  in  the 
case  of  Johnson  and  M'Intosh  that  demands  attention  (p.  592, 
593).      ''  Another  view  has  been  taken  of  this  question  which 


JANUARY  TERM  1831.  127 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
deserves  to  be  considered.  The  title  of  the  crown,  whatever 
it  might  be,  could  be  acquired  only  by  a  conveyance  from  the 
crown.  If  an  individual  might  extinguish  the  Indian  title 
for  his  own  benefit,  or  in  other  words  might  purchase  it,  still 
he  could  acquire  only  that  title.  Admitting  their  power  to 
change  their  laws  or  usages,  so  far  as  to  allow  an  individual  to 
separate  a  portion  of  their  lands  from  the  common  stock,  and 
hold  it  in  severalty,  still  it  is  a  part  of  their  territory  and  is 
held  under  them  by  a  title  dependent  on  their  laws.  The 
grant  derives  its  efficacy  from  their  will:  and  if  they  choose 
to  resume  it  and  make  a  different  disposition  of  their  land,  the 
courts  of  the  United  States  cannot  interpose  for  the  protec- 
tion of  the  title.  The  person,  who  purchases  lands  from  the 
Indians  within  their  territory,  incorporates  himself  with  them, 
so  far  as  respects  the  property  purchased;  holds  their  title, 
under  their  protection,  and  subject  to  their  laws.  If  they 
annul  the  grant,  we  know  of  no  tribunal  which  can  revise  and 
set  aside  the  proceeding.  We  know  of  no  principle  which 
can  distinguish  this  case  from  a  grant  made  to  a  native  Indian, 
authorizing  him  to  hold  a  particular  tract  of  land  in  severalty." 

This  view  of  the  subject  is  in  strict  consonance  with  all  our 
treaties  with  the  Cherokee  nation.  It  contemplates  the  ter- 
ritory as  their  territory  so  long  as  they  shall  choose  to  retain 
it;  and  so  long  also  under  the  exclusive  government  of  their 
own  laws,  without  any  power  of  revision  or  reversal  in  any 
other  tribunal. 

Thus,we  see, that  the  construction  which  Georgia  now  places 
on  her  charter,  to  wit,  that  it  gives  her  a  right  to  take  imme- 
diate possession  of  the  landioithin  the  liinits  of  that  charter, 
and  to  govern  it  and  all  its  inhabitants  by  Iter  laws,  in  to- 
tal disregard  of  the  Indian  title  and  Indian  jurisdiction,  is  a 
construction  directly  repugnant  to  the  title  asserted,  by  the 
monarch  who  gave  that  charter;  at  war  with  the  practical  con- 
struction uniformly  placed  by  him  and  his  grantees  on  that 
charter;  at  war  with  the  construction  placed  by  Georgia  her- 
self on  that  charter  in  her  treaty  of  17S0  with  these  Indians, 
and  in  her  act  of  cession  to  the  United  States  in  1802;  and  in 
open  and  direct  war  with  all  the  acts  of  every  branch  of  our 
government,  executive,  legislative,  and  judicial,  down  to  the 
present  day;  which  have  uniformly  admitted  the  territory  and 


128  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

its  exclusive  jurisdiction  to  belong  to  the  Indians  so  long  as  it 
shall  be  their  pleasure  to  i-etain  it. 

The  political  paradox,  therefore,  which  Georgia  supposes 
to  be  asserted  against  her,  when  we  deny  her  a  right  to  the 
immediate  and  exclusive  possession  and  jurisdiction  over  all 
the  lands  ivithin  the  limits  of  her  charter,  becomes  a  paradox 
only  by  her  own  voluntary  misconstruction  of  that  instru 
ment.  Her  charter  gives  her,  and  has  ever,  heretofore,  been 
considered  as  giving  her  only  the  ultimate  domain  over  the 
lands  in  the  Indian  occupancy,  to  take  effect  luhen  they  shall 
choose  to  cede  them :  but  she  chooses  to  confound  the  ulti- 
mate doTnain  with  the  immediate  possession,  and  thus  to  cre- 
ate a  paradox  where  none,  in  reality,  exists.  It  is  a  paradox 
erected  b);-  the  im.patience  of  cupidity,  not  by  the  light  of  truth 
and  justice.  She  chooses  to  consider  a  future  contingent 
title,  as  a  present,  absolute  one,  a  m,ere  possibility,  as  a  cer- 
tainty: and  boldly  assuming  this  novel  construction  as  an  ob- 
vious truth,  she  proceeds  to  act  upon  it,  in  entire  and  open 
disregard  of  all  the  treaties,  as  well  as  the  laws  and  constitu- 
tion of  the  United  States,  to  which  she  is  herself  a  party.  Shall 
then  these  things  be  permitted,  and  does  there  exist  no  power 
in  any  branch  of  our  government  to  arrest  this  fatal  madness, 
and  to  save  the  faith  and  honour  of  our  nation?  Then  we  have 
no  nation.  Our  constitution,  laws,  and  treaties  are  empty 
pageants,  that  but  mock  us  with  a  show  of  national  existence. 
And  it  were  well  for  us  if  we  could  persuade  the  world  of  this 
fact;  for  better,  far  better  would  it  be  for  us  to  be  no  nation, 
than  to  be  a  nation  without  faith  and  honour.  But  let  us  hope 
for  better  things.  We  trust  that  there  is  a  redeeming  spirit 
here  that  will  save  us  from  this  humiliation:  this  indelible  dis- 
grace. 

We  trust  we  have  shown  that  the  state  of  Georgia,  her  char- 
tered limits  notwithstanding,  has  no  right  to  the  present  poss- 
ession of  the  Cherokee  territory.  If  so,  they  are  not  her 
subjects,  hnt  aliens  to  her  government  and  are  not  bound  by 
her  laws.  Even  in  the  far  stronger  case  of  a  present  title 
to  a  country,  the  possession  of  which  is  in  another  nation, 
tvhich  claims  and  enjoys  the  actual  allegiance  of  the  people, 
these  people  are  aliens  to  the  prince  that  has  the  title.  So  it 
was  held  in  Calvin's  case,  7  Co.  21.     France  was  claimed  by 


JANUARY  TERM  1831.  129 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
England  as  having  descended  to  Edward  III.  from  his  mother 
Isabel,  daughter  and  heir  to  Philip  le  Beau,  king  of  France. 
On  this  plea  France  was  invaded;  and  Henry  VI.  was,  at  one 
time,  in  possession  of  '^  the  heart  and  greatest  part"  of  that 
kingdom,  having  been  crowned  king  of  France  at  Paris.  On 
this  state  of  facts,  it  was  held,  that  those  who  were  born  in 
the  parts  of  France  that  were  under  the  actual  allegiance  of 
Henry,  "  were  no  aliens,  but  capable  of  and  inheritable  to 
lands  in  England;"  while  those  who  were  born  in  the  other 
parts  of  France,  though  the  title  was  the  same  to  the  whole 
kingdotn,  were  held  to  be  aliens.  To  constitute  a  man  a  sub- 
ject, the  country  in  which  he  is  born  should  be  in  actual  obe- 
dience to  the  sovereign  whose  subject  he  is  asserted  to  be. 
''It  is  termed  actual  obedience,  says  Coke,  page  18,  because 
though  the  king  of  England  has  absolute  right  to  other  king- 
doms or  dominions,  as  France,  Aquitain,  Normandy,  &c.  yet 
seeing  the  king  is  not  in  actual  possession  thereof,  none  born 
there  since  the  croion  of  England  was  not  of  actual  poss- 
ession thereof,  are  subjects  to  the  king  of  England.'' 

Now  the  state  of  Georgia  never  had  possession,  nor  right 
of  possession  to  the  Cherokee  territory;  this  has  been  shown, 
as  it  has  been  that  the  possession  which  she  has  recently  taken 
is  without  colour  of  law,  and  in  direct  violation  of  our  trea- 
ties and  the  solemn  guarantee  of  the  United  States:  it  is, 
therefore,  as  no  possession  in  contemplation  of  law.  These 
people,  then,  are  aliens  to  her  government;  and  consequently 
owe  no  allegiance  to  her  laws. 

They  are  not  under  the  protection  of  the  state  of  Georgia. 
By  the  second  article  of  the  treaty  of  Holston,  they  placed 
themselves  under  the  protection  of  the  United  States,  and  of 
no  other  sovereign  ivhatsoever,  and  stipulated  that  they  would 
hold  no  treaty  with  any  state.  They  are  not  connected  with 
that  state,  then,  either  by  allegiance  or  protection:  and  when 
Georgia  presents  her  paradox  of  a  foreign  state  within  the 
limits  of  her  charter,  she  meets  another  paradox  much  more 
enigmatical,  of  a  body  of  six  thousand  people,  permanently 
and  rightfully  within  those  limits,  who  owe  her  no  allegiance 
and  are  entitled  to  no  protection  from  her.  In  truth,  there  is  no 
paradox  in  the  case:  the  apparent  paradox  proceeding  entirely 
from  her  erroneous  construction  of  her  charter;  in  confounding 
R 


130  SUPREME  COURT. 

[The  Cherokee  Nation  fs.  The  State  of  Georgia.] 
the  ultimate  domain  which  it  does  give  her,  with  a  present 
absolute  title,  dominion  which  it  does  not  give  her. 

To  the  same  error  is  to  be  traced  the  trite  objection  that 
the   right   of  self   government,   claimed  by  the   Cherokees 
within  the   chartered    limits  of  Georgia,  is   the  claim  of  an 
imperium  in  imperio.     Plalf  enlightened  persons,  who  see 
men  only  as  trees  walking,  seem  to  consider  this  as  an  unan- 
swerable objection :  for   no   other  reason  that  I  can  imagine, 
than  that  it  is  expressed   in  a  foreign  and   learned  language 
which  they  do  not  understand;  and   that  men  always  fancy 
there   is  something  unfathomably  deep  in  v/hat  lies  beyond 
the  reach  of  their  own  lead.     Those,  who  understand  the  ob- 
jection in  its  true  meaning,  sec  that  it  has  no  manner  of  ap- 
plication to  the   case.     Jl  government  within  a  government 
does  not  mean  a  state  sui;rounded  hy  the  territories  of  another 
state,  and  yet  retaining  its  separate  political  character:  for 
in  this  there  is  nothing  more  incongruous  than  in  the  every 
day's  occurrence  of  a  small  land-holder  having  his  estate  sur- 
rounded by  the  lands  of  his  more  wealthy  neighbour,  and  yet 
retaining  his    separate   independence  and    sovereign  right  of 
property.     If  this  were   the   meaning   of  the  objection,  the 
free  Hanse  towns  of  Germany  would   be  so  many  im,peria  in 
imperio,  because  surrounded  by  the  territory  of  the  German 
princes,  within  whose  districts  or  circles  they  lie:  the  district 
of  Columbia  would  be  an  imperium  in  imperio,  because  it 
lies  within  the  chartered  limits  of  Maryland  and  Virginia; 
and  Castine  was  an  imperium  in  imperio,  while  the  British 
held  the  possession,  and  gave  the  law  within  that  port;  because 
it  lay  within  the  territorial  limits  of  the  United  States.     The 
imperium  in  imperio  has  no  application  to  two  distinct  govern- 
ments operating  at  the  same  time  on  separate  territories;  for 
the  one  government  is  not  within  the  other  governm,ent,  al- 
though the  territory  over  which  the  one  acts,  may  be  encircled 
by  the  larger  territories  of  the  other.     It  is  the  conflict  of 
two  sovereignties  on  the  same  territoi^y  at  the  same  time, 
that  is  meant  by  the  imperium   in  imperio.     Even   in  this 
sense,  it  is  no  longer  a  paradox  in  the  United  States,  for  every 
state  exhibits  an  example  of  it.     But  in  this  sense  it  has  no 
application  to  the  state  of  Georgia  and  the  Cherokee  nation: 
for  they  are  separate  sovereignties  exerted  over  separate  ter- 


JANUARY  TERM  1831.  131 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

ritories;  and  there  is  therefore  no  imperiwrn  in  imperio  in  the 
case.  It  is  true,  that  if  the  state  of  Georgia  had  the  present 
right  of  possession  and  jurisdiction  over  the  Cherokee  ter- 
ritory, the  self  government  of  the  latter  nation  on  that  terri- 
tory, would  present  the  incongruity  of  an  imperium  in  imperio. 
But  this  is  the  question.  If  the  British  government,  from 
which  the  charter  flowed,  and  the  American  government,  in- 
cluding the  state  of  Georgia  herself,  in  times  past,  are  right 
in  the  construction  of  that  charter,  she  has  no  such  right  of 
present  possession  and  jurisdiction  over  the  Cherokee  terri- 
tory; and  it  is  only  by  assuming  what  is  not  true,  that  she  has 
such p7'esent  right,  that  she  has  been  able  to  bewilder  twilight 
intellects  with  this  often  repeated  but  wholly  unfounded  objec- 
tion of  an  imperium  in  imperio.  It  has  fared  with  this  imagi- 
nary objection  as  it  has  often  fared  with  imaginary  facts, 
which  are  repeated  and  circulated  until  they  are  at  length 
believed  even  by  their  inventors. 

Upon  the  whole,  may  it  please  your  honours;  we  are  not 
aware  of  any  test  that  can  be  fairly  applied  to  the  subject 
which  will  not  conduct  us  to  the  same  conclusion  that  the  com- 
plainants are  a  state  and  a  foreign  state  in  the  sense  of  the 
judicial  branch  of  the  constitution;  which  is  manifestly  a  sense 
purely  jt?o//;/ca/ and  not  at  d\\  geographical. 

1.  Is  allegiance  the  test?  Then  are  they  a  foreign  state; 
for  they  owe  no  allegiance  to  any  other  government  than  their 
own. 

2.  Is  recognition  by  treaty  the  test?  Then  are  they  ti  for- 
eign state;  for  they  have  been  so  recognized  by  the  govern- 
ment of  the  United  States,  from  the  treaty  of  Hopewell  in 
1785  down  to  the  present  day. 

3.  Is  the  right  to  hold  the  exclusive  possession  of  their  ter- 
ritory, and  to  give  the  supreme  law  upon  it  the  test?  Then 
are  they  vl  foreign  state;  for  every  branch  of  the  government 
of  the  United  States  has  concurred  in  according  to  them  these 
rights. 

4.  Is  the  right  to  make  legitimate  war  upon  the  United 
States  the  test?  Then  are  they  a  foreign  state;  for  all  our 
treaties  with  them,  and  all  our  practice  under  those  treaties, 
admit  this  right  as  unquestionable. 

5.  Is  individual  alienage  the  test?     Th&n&rt  they  a  foreign 


132  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

state;  for  all  our  treaties,  laws  and  constitution,  admit  that 
they  are  not  citizens  of  the  United  States,  and,  if  not  citizens, 
they  are  necessarily  aliens,  there  being  no  middle  class  recog- 
nized by  our  political  institutions. 

6.  Is  the  language  and  reason  of  this  constitutional  provision 
the  test?  Then  are  they  a  foreign  state;  for  by  the  language 
they  are  a  foreign  stale,  \i  foreign  to  our  confederacy:  and 
by  the  reason  they  are  a  foreign  state;  since  standing  upon  a 
national  compact  with  the  United  States,  they  have  a  right 
to  the  jurisdiction  of  the  national  court  in  the  exposition  of 
that  contract 

7.  Are  civilization,  religion,  agriculture  and  a  capacity  for 
self  government  essential  to  the  consummation  of  their  cha- 
racter as  a  foreign  state?  Then  are  they  a  foreign  state; 
for  according  to  the  allegations  of  the  bill  they  are  at  least 
upon  a  par  with  their  white  neighbours  in  these  respects, 
whose  political  existence  as  a  state  is  not  to  be  questioned. 

Thus  they  unite  in  themselves  every  test  which,  according 
to  the  law  of  nations,  is  deemed  essential  to  the  constitution 
of  a  foreign  state.  If  we  look  to  the  specific  clause  of  the 
constitution  under  question,  and  construe  it  either  by  its  letter 
or  reason,  we  are  conducted  to  the  same  conclusion  that  they 
are  a  foreign  state.  If  we  regard  the  test  which  has  been 
heretofore  presented  by  this  court  itself,  a  recognition  by  our 
own  government;  this  too  concurs  in  repeated  and  solemn 
acts,  in  affixing  the  same  character  to  them,  that  of  a  foreign 
state. 

On  the  other  hand,  if  the  objections  to  tlieir  being  2.  foreign 
state  be  considered,  we  have  seen  that  they  proceed  either 
from  confounding  the  geographical  with  the  political  mean- 
ing of  the  words ybre2^7i  state;  or  from  erroneously  consider- 
ing a  partial  dependence  on  the  United  States  as  such  a 
dependence  as  destroys  their  political  existence  as  a  separate 
state. 

For,  I.  If  the  objection  be  that  they  lie  within  the  territorial 
limits  of  Georgia,  we  have  seen  that  they  do  not  lie  within 
the  territorial  jurisdiction  of  Georgia;  and  that  although  her 
chartered  limits  give  her  the  ultimate  domain  they  give  her 
no  present  dominion  and  do  not,  in  the  slightest  degree,  affect 
the  present  political  condition  of  the  Cherokee  nation. 


JANUARY  TERM  1831.  133 

[The  Cherokee  Nation  us.  The  State  of  Georgia.] 
2,  If  the  objection  be  that  the  principle  of  discovery,  as 
agreed  upon  by  the  potentates  of  Europe,  leaves  them  only 
the  occupancy  of  their  lands;  we  answer  that  it  is  a  perpetual 
occupancy  to  them  and  their  heirs:  for,  in  the  language  of 
this  court,  they  have  a  legal  and  a  just  right  to  retain  their 
lands  and  to  use  them  as  they  please:  they  have  a  right  to 
give  the  law  exclusively  on  these  lands,  in  the  character  of  a 
separate  state,  and  this  /or  ever;  and  they  have  a  right  to 
make  legitimate  war  for  these  lands,  even  upon  the  United 
States.  With  these  decisive  attributes  of  sovereignty,  we 
cannot  discover  how  this  title  by  discovery,  called  the  ul- 
timate domain,  which  they  have  a  right  to  protect  for 
ever,  can  interfere  with  iheiT  present  political  character  as  a 
separate  community  or  state;  more  especially  since  their  pre- 
sent political  character  may  be  perpetuated  by  them,  for  ever, 
at  their  pleasure. 

It  is  true  that  the  potentates  of  Europe  have  agreed  that 
one  of  them,  alone,  shall  have  the  exclusive  right  of  purchasing 
such  of  their  lands  as  the  Indians  are  disposed  to  sell;  and 
consequently,  when  they  are  disposed  to  sell,  they  must  sell 
to  that  potentate,  or  to  those  who  have  succeeded  to  his  title. 
This  title  by  discovery,  however,  places  them  under  no  ne- 
cessity of  selling,  at  all.  It  leaves  them  entirely  free  on  that 
subject.  So  that  this  arrangement  at  last  only  effects  the 
value  of  the  property  in  their  hands,  by  withdrawing  all  com- 
petition from  the  market,  and  limiting  them,  when  disposed 
to  sell,  to  a  single  purchaser.  It  is  not  perceived,  however, 
that  this  arrangement  affects  the  validity  of  their  title  to  their 
property,  any  more  than  a  similar  corrupt  combination  among 
the  purchasers  at  a  private  market  affects  the  validity  of  the 
proprietor's  title  to  his  goods.  He  has  only  to  say,  if  I  cannot 
sell  to  whom  I  please,  I  will  sell  to  none  of  you,  but  keep  my 
property  to  myself. 

Similar  combinations  have  been  made  among  other  nations 
against  some  foreign  prince  or  state;  but  however  injurious  as 
well  as  unjust  they  have  been,  they  have  never  been  considered 
as  affecting  iho.  political  existence  of  the  state  or  prince  who 
is  the  object  of  the  combination.  Great  Britain  depends  upon 
her  commerce,  and  consequently  upon  foreign  markets,  for 
the  supply  of  her  revenue.     Foreign  states   have  combined 


134  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  Slate  of  Georgia.] 
not  to  trade  with  her,  or  to  buy  her  goods,  nor  to  permit  others 
to  do  it;  still  this  has  not  been  considered  as  impairing  her  or 
their  sovereignty  as  states.  Our  own  rights,  as  a  sovereign 
nation,  have  been  restrained  by  foreign  policy,  and  the  free- 
dom of  our  commerce  disturbed  by  British  orders  in  council 
and  French  decrees;  yet  this  has  never  been  considered  as  call- 
ing in  question  our  sovereignty  as  a  state.  These  vvei'e  bel- 
ligerent measures,  it  is  true;  but  we  were  no  parties  to  the 
war.  The  same  sort  of  foreign  interference  has  been  exer- 
cised, in  a  time  of  profound  peace,  and  from  motives  of  selfish 
policy,  as  in  the  case  before  us.  The  holy  alliance  was  founded 
entirely  on  the  asserted  right  of  such  interference.  The  allied 
monarchs  determined  that  no  revolution  should  be  permitted 
in  any  nation  of  Europe,  however  much  the  people  should  de- 
sire it,  but  that  all  the  crowns  of  Europe  should  be  kept  in  the 
line  of  legitimate  succession.  Here  was  a  direct  interference 
with  the  independence  of  all  the  nations  of  Europe,  not  parties  to 
that  alliance:  and  it  was  meant  to  be  acted  on,  and  has  been  acted 
on.  Did  those  nations  lose  their  present  political  existence  as 
states,   by  force  of  that   alliance? 

Suppose  that  the  United  States  and  the  European  sovereigns, 
owning  colonies  intheWest  Indies,should  agree  thatthey  would 
not  accept  from  Spain  a  cession  of  the  island  of  Cuba,  or  that  one 
of  them  only  should  be  at  liberty  to  accept  it,  and  that  any  ces- 
sion of  it  made  to  others  should  be  void ;  would  this  destroy  the 
sovereignty  of  Spain  in  that  island?  Suppose  that  the  powers 
of  Europe  should  agree  that  no  one  of  them  should  accept  a 
cession  of  Belgium,  except  the  king  of  Holland;  would  that 
destroy  the  present  political  sovereignty  of  Belgium?  Suppose 
these  potentates  should  resolve  that  Belgium  should  not  elect 
a  foreign  king;  this  would  certainly  diininish  her  complete 
sovereignty  as  an  independent  state;  but  would  she  for  this 
reason  cease  to  be  a  state,  and  a  sovereign  state,  too,  in  the 
view  of  the  law  of  nations?  Is  it  not  enough  to  say  that  the 
potentates  of  Europe,  and  the  claimants  under  them  by  suc- 
cession, have  diminished,  in  some  degree,  the  complete  sove- 
reignty of  the  Indians,  as  independent  nations;  the  question 
is,  have  they  diminished  it  to  such  a  degree  as  to  destroy 
their  present  political  existence  as  states?  We  see  that 
they  have  not,  because  they  have  still  recognized  in  them  those 


JANUARY  TERM  1831.  135 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
vital  attributes  which  form  the  test  of  sovereignty  in  a  state; 
the  exclusive  right  of  self  government  in  their  own  terri- 
tory, and  the  rights  of  war  and  peace,  even  against  the  dis- 
covering potentate  and  his  successors. 

3.  Is  the  objection  that  they  have  acknowledged  themselves 
under  the  protection  of  the  United  States?  Vattel,  we  have 
seen,  looks  at  this  specific  objection,  and  declares  that  it  does 
not  impair  their  sovereignty  as  a  state;  provided  they  retain 
the  rights  which  we  have  shown  they  have  retained. 

4.  Is  the  objection  that  they  are  a  domestic  state,  because 
within  territorial  limits  of  the  United  States?  But  this  is 
changing  the  idea  of  this  clause  of  the  constitution  from  a 
political  to  a  geographical  one.      IFe  have  no  domestic  states 

except  the  states  of  the  union.  All  other  states,  if  they  be 
states  at  all  (as  we  have  found  the  Cherokee  nation  to  be),  are, 
necessarily,  foreign  states. 

The  situation  of  the  Indian  nations  on  this  continent,  it  is 
admitted,  is  anomalous  in  many  respects:  this  anomaly  is  one 
of  our  own  contrivance,  not  theirs.  It  will  not  do,  however, 
among  accurate  reasoners,  to  assume  these  anomalies  as  strip- 
ping them  of  the  character  of  foreign  states.  These  anoma- 
lies are  to  be  analyzed:  and  we  must  find  in  them  something 
incompatible  with  that  degree  of  sovereignty  which  will  still 
leave  these  nations  in  the  political  condition  of  states,  before 
we  leap  to  the  conclusion  that  they  have  ceased  to  be  states. 
It  has  been  my  endeavour  to  perform  this  process  of  analysis. 
I  have  looked  at  all  the  anomalies  that  have  been  brought  to  my 
knowledge;  and  after  allowing  to  them  all  their  weight,  it 
seems  to  me  that  whether  we  look  for  our  standard  to  the  law 
of  nations,  to  our  public  treaties  with  these  people,  or  to  the 
acts  and  adjudications  of  the  executive,  legislative  and  judicial 
departments  of  our  government,  the  Cherokee  nation  is  a 
foreign  state  within  the  sense  of  that  article  of  our  constitu- 
tion which  is  to  decide  this  question. 

There  is,  however,  another  article  of  the  constitution  which 
demands  consideration;  that  which  contains  the  enumeration 
of  the  powers  of  congress.  Article  1,  ^  8.  Among  other 
powers  here  enumerated,  there  is  this:  congress  shall  have 
power  "to  regulate  commerce  with  foreign  nations  and  among 
the  several  states  and  with  the  Indian  tribes." 


136  SUPREME   COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

This  may  be  relied  on  to  prove  that  the  Indian  nations  are 
not  foreign  states  in  the  sense  of  those  who  framed  the  consti- 
tution; because  the  Indian  tribes  are  here  enumerated  in 
contradistinction  to  foreign  nations. 

Let  us  consider  this  objection  with  care  and  with  candour. 

It  has  been  already  admitted  and  shown  by  authority  that 
the  word  foreign  has  various  significations,  political,  geo- 
graphical, chemical,  onetaphysical,  &c.  and  that  to  determine 
its  sense  in  any  given  instance  we  are  to  look  at  the  subject 
matter  to  which  it  is  applied.  In  one  sense,  Webster  says, 
*' we  call  every  country  foreign,  which  is  not  loithin  the  ju- 
risdiction of  our  own  government.  ^^  This  is  its  political 
sense.  '■^  More  generally,  he  adds,  foreign  is  applied  to 
countries  more  remote  than  an  adjacent  country,  as  2,  for- 
eign market,  ^foreign  prince.  In  the  United  States,  all  trans- 
atlantic countries  are  foreign.^'  This  is  its  geographical 
sense. 

Now,  in  which  of  these  senses  is  the  word  used  in  the 
clause  under  consideration?  If  in  its  geographical  or  local 
sense,  it  does  not  at  all  affect  the  question  of  the  Cherokee 
nations  being  di  foreign  state  under  the  judicial  clause,  as  we 
have  seen  where  aybre/^/i  state  is  presented  in  its  political 
sense. 

In  the  clause  before  us,  the  subject  matter  is  the  regula- 
tion of  commerce  between  the  United  States  and  other  na- 
tions. The  regulation  of  trade  between  different  markets 
presents  us  only  with  geographical  ideas,  with  regard  to 
those  markets  and  the  locomotive  mean^  by  which  it  is  car- 
ried on.  Commerce  with  foreign  nations  gives  us  the  popu- 
lar idea  of  an  intercourse  carried  on  by  ships,  in  which  the 
articles  of  one  nation  are  bartered  and  exchanged  for  those  of 
the  other.  And  in  this  connection  ^<  commerce  with  foreign 
nations^'  presents  the  wovA  foreign  in  what  Webster  calls  its 
more  general,  or  popular  sense,  of  trade  with  nations  beyond 
the  Atlantic:  or  at  least  with  nations  extra-territorial  to  the 
United  States;  iii  point  of  location.  This  being  the  popu- 
lar, and,  indeed,  the  correct  meaning  of  commerce  with  for- 
eign nations,  the  clause  is  perfectly  correct  and  free  from 
tautology;  giving  us  the  word /om^w*  in  its  geographical 
sense  only,  without  any   allusion  to  that  political  sense   in 


JANUARY  TERM  1831.  137 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
which  the  phrase  /oreig)i  state  is  presented  in  the  judicial 
clause.  Thus:  "congress  shall  have  power  to  regulate  cotti- 
merce  with  foreign  nations^''  means  with  nations  beyond  the 
Atlantic,  or  any  where  beyond  the  territorial  boundary 
of  the  United  States:  "and  among  the  several  states"  means 
among  the  states  composing  the  union:  "  and  with  the  Indian 
tribes"  means  with  those  Indian  nations,  which  are  not  states 
of  the  union,  and  yet  are  locally  situated  within  the  exterior 
boundary  line  of  the  United  States. 

If  the  clause  had  stopped  with  giving  congress  the  power  "  to 
regulate  commerce  with  foreign  nations,  and  among  the,  seve- 
ral states,^'  it  might  well  have  been  questioned  whether  they 
would  have  had  power  to  regulate  commerce  with  the  Indian 
nations,  within  the  limits  of  the  United  States,  as  settled  by 
the  treaty  of  peace  with  Great  Britain:  for  it  might  with 
reason  have  been  contended  and  adjudged,  that  commerce 
laith  foreign  nations  meant  commerce  with  ndXions  foreign 
in  point  of  location,  and  not  foreign  in  point  of  jurisdic- 
tion. Such  a  decision,  however,  would  have  left  the  question 
now  before  the  court  untouched;  the  question  here  being,  whe- 
ther the  Cherokee  nation  be  not  a  foreign  state  in  point  of 
jurisdiction. 

With  an  intention  to  give  to  congress  the  exclusive  power 
of  regulating  commerce  with  the  Indian  tribes,  it  would  cer- 
tainly have  been  extremely  unwise  to  leave  that  power  to  rest 
on  the  construction  that  might  be  placed  on  the  general  ex- 
pression of  a  power  to  regulate  commerce  with  foreign  na- 
tions: and  this  the  more  especially,  after  the  controversy 
which  had  arisen  between  the  state  of  Georgia  and  the  old 
congress,  on  the  analogous  provision  in  the  articles  of  confe- 
deration. The  provision  in  the  articles  of  confederation  was, 
that  ^'the  United  States  in  congress  assembled  shall  have  the 
sole  and  exclusive  right  and  power  of  regulating  the  trade  and 
managing  all  affairs  with  the  Indian  tribes  not  m,embers  of  any 
of  the  states ; provided  that  the  legislative  right  of  any  state 
within  its  own  limits  be  not  infringed  or  violated)''^  We 
learn  from  the  transactions  of  the  old  congress,  to  which  my 
colleague  has  referred,  that  the  state  of  Georgia  considered 
herself  still  at  liberty  to  treat  individually  with  the  Indian 
nations  within  her  limits,  a  liberty  which  we  have  seen  that 
S 


138  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
she  exercised  in  her  treaty  with  the  Cherokee  and  Creek 
nations  in  1783.  Her  authority  to  do  this  was  questioned  in 
congress;  and  you  have  been  referred  to  an  elaborate  report 
made  by  a  committee  of  that  body,  of  which  the  learned  Mr 
Dane  was  the  chairman,  in  which  her  authority  to  treat  with 
or  to  legislate  over  the  Indians  was  most  explicitly  denied. 
This  question,  however,  having  thus  arisen  under  these  two 
members  of  this  clause  in  the  articles  of  confederation,  which 
restrain  the  power  of  congress  to  Indians  7iot  members  of  any 
state  (which  the  Federalist  considers  as  obscure  and  contra- 
dictory), and  to  such  an  exercise  of  the  power  as  shall  not  vio- 
late or  infringe  the  legislative  right  of  any  state  within  its 
own  litnits  (which  the  same  eminent  writer  pronounces  to  be 
absolutely  incomprehensible),  the  design  of  the  constitu- 
tion, we  are  told,  was  to  unfetter  the  power  from  these  two 
unintelligible  limitations  which  had  produced  the  controversy. 
See  the  Federalist,  No.  42. 

If,  therefore,  the  grant  to  congress  in  the  constitution,  of  the 
power  to  regulate  commerce  with  foreign  nations,  might  by 
possibility  have  been  construed  to  extend  to  all  nations  of  a 
jurisdiction  foreign  to  the  government  of  the  United  States, 
and  thus  to  have  embraced  the  Indian  nations;  yet  as  thefar  more 
natural  construction  would  have  been  to  confine  the  provision  to 
nations  foreign  in  point  of  local  situation;  and  as  a  contro- 
versy had  already  arisen  on  the  similar  provision  under  the  con- 
federation, common  prudence  required  the  insertion  of  this  spe- 
cific power  with  regard  to  the  Indian  tribes.  In  point  of 
locality,  they  are  not  a  foreign  nation;  while,  in  point  of 
jurisdiction,  they  are  a  foreign  state.  The  contradistinc- 
tion, therefore,  between  foreign  nations  and  Indian  tribes, 
in  the  article  which  gives  the  power  to  regulate  commerce, 
being  a  contradistinction  in  jwint  of  locality  merely,  has  no 
bearing  on  the  question  arising  under  the  judicial  clause; 
where  the  contradistinction  is  between  states  of  the  union 
and  states  not  of  the  union,  in  their  political  capacity 
alone. 

The  court  will  be  pleased  to  observe  that  the  phrase  is  not 
the  same  in  the  two  articles  of  the  constitution  which  we  are 
comparing.  In  the  commercial  clause  it  is  foreign  nations, 
in  free  and  popular  language.     In  the  judicial  clause  it  is  a 


JANUARY  TERM  1831.  139 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
foreign  state;  an  exact  technical  expression,  presenting  the 
accurate  idea  of  a  separate  political  community  under  the  law 
of  nations,  as  contradistinguished  from  the  political  commu- 
nities which  compose  the  union.  In  the  former  case  the  mind 
is  directed  to  local  situation  merely,  without  any  reference 
to  political  aspect :  in  the  latter  it  is  exactly  reversed,  being 
directed  to  the  political  aspect  only,  without  any  regard  to 
local  situation;  since  it  is  manifest  that  to  the  purposes  of  the 
judicial  clause,  it  is  wholly  immaterial  where  the  state  may 
exist,  provided  it  be  estate  foreign  to  the  confederacy. 

We  respectfully  conceive,  therefore,  that  there  is  nothing 
in  this  commercial  clause  which  impugns,  or  even  touches  the 
construction  which  the  judicial  clause  separately  considered 
would  present;  that  the  Cherokee  nation  stands  before  you  as 
2.  foreign  state  in  the  sense  of  that  clause  which  marks  out 
your  jurisdiction;  and  consequently,  that  there  is  a  competent 
plaintiff  as  well  as  a  competent  defendant  to  call  forth  the  ex- 
ercise of  your  original  jurisdiction. 

The  parties,  then,  being  right,  the  next  question  is, 

2.  Whether  the  ease.,  as  made  by  the  bill,  be  a  proper  one 
for  the  jurisdiction  of  this  court? 

The  judicial  power  of  the  United  States  extends,  as  we  have 
seen,  "to  all  cases  in  law  and  equity,  arising  under  this  con- 
stitution, the  laws  of  the  United  States,  and  treaties  made, 
or  which  shall  be  made,  under  their  authority:"  and 

"  To  controversies  hetiueen  a  foreign  state  and  a  state  of 
the  union." 

These  are  distinct  heads  of  jurisdiction.  The  structure  of 
the  clause  demonstrates  that  they  are  distinct  heads.  Thus 
the  first  head  is  that  which  has  been  stated:  "all  cases  arising 
under  the  constitution,  laws,  and  treaties  of  the  United  States:" 
the  second  is  "to  all  cases  affecting  ambassadors,  other  public 
ministers,  and  consuls:"  of  these  the  court  has  jurisdiction 
from  the  character  of  the  party ,  without  regard  to  the  charac- 
ter of  the  controversy :  these  high  public  functionaries  have, 
therefore,  a  right  to  come  into  this  court,  whether  the  case 
arise  under  the  constitution,  laws  and  treaties  of  the  United 
States,  or  not.  Thirdly,  "to  all  cases  of  admiralty  and  mari- 
time jurisdiction:"  though  these  may  arise,  not  under  the 
constitution,  laws,  and  treaties  of  the  United  States,  but  under 


140  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
the  law  of  nations.  Fourthly,  "  to  controversies  to  which  the 
United  States  shall  be  a  party;"  that  is,  to  all  such  controver- 
sies, however  arising.  Fifthly,  "  to  controversies  between 
two  or  more  states;"  though  such  controversies  do  not  arise 
«ither  under  the  constitution,  laws,  or  treaties  of  the  United 
States;  as  in  a  question  of  boundary,  or  a  question  of  any 
other  kind  between  two  or  more  states.  Sixthly,  "between 
citizens  of  different  states,"  as  in  the  cases  continually  occur- 
ring between  such  s^uitors  in  our  circuit  courts,  which  have 
nothing  to  do  with  the  constitution,  laws,  or  treaties  of  the 
United  States.  Seventhly,  <' between  citizens  of  the  same 
state,  claiming  lands  under  grants  of  different  states;"  clearly 
unconnected  either  with  the  constitution,  laws,  or  treaties  of 
the  United  States.  Then  follows  the  last  head,  as  modified  by 
the  eleventh  amendment;  to  wit,  eighthly,  "  to  controvey^sies 
between  a  state  and  a  foreign  state;''^  that  is,  to  all  judicial 
controversies  between  such  parties,  whether  they  be  or  be  not 
cases  arising  under  the -constitution,  laws,  or  treaties  of  the 
United  States;  the  jurisdiction  being  here,  as  in  several  of  the 
preceding  cases,  given  on  Siccountoi  the  character  of  the  par- 
ties, not  on  account  of  the  character  of  the  controversy;  and 
with  the  manifest  view  of  securing  to  the  foreign  party  the 
most  impartial  tribunal  which  our  institutions  afford  in  every 
controversy  with  a  state. 

Even,  therefore,  if  this  were  not  a  case  arising  under  the 
constitution,  laws,  or  treaties  of  the  United  States,iyet  if 
it  be  a  controversy  between  a  foreign  state  and  a  state,  it 
falls  within  the  judicial  power  of  the  United  States:  and  a 
state  of  the  union  being  a  party,  the  original  jurisdiction 
of  this  court  attaches  to  the  controversy,  by  the  express  pro- 
vision of  the  second  clause  of  this  section. 

Is  it  not,  then,  a  controversy  between  a  foreign  state  and  a 
state  of  the  union,  in  which  these  parties  are  asserting  adversary 
claims  to  the  same  property,  and  to  the  right  of  jurisdiction 
over  the  same  property?  If  it  be,  as  it  manifestly  is;  then, 
whether  the  decision  of  this  controversy  depends  on  the  con- 
stitution, laws,  or  treaties  of  the  United  States,  or  upon  the 
law  of  nations,  it  is  a  judicial  controversy,  to  be  settled  by 
the  application  of  the  law  to  the  case,  and  clearly  belongs  to 
the  jurisdiction  of  this  court. 


JANUARY  TERM  1831.  14J 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

But  if  it  be  necessary  to  found  the  jurisdiction  of  this  court, 
that  it  should  be  "  a  case  in  law  or  equity  arising  under  the  con- 
stitution, laws,  or  treaties  of  the  United  States,"  then  it  is 
such  a  case;  for  it  is  the  case  of  a  right  to  j)roperty  and  juris- 
diction, set  up  by  the  foreign  state  under  a  treaty  of  the  United 
States,  which  same  property  and  jurisdiction  are  claimed  by  a 
state  of  the  union  under  her  own  laws,  made,  as  the  complain- 
ants allege,  in  repugnance  to  that  treaty. 

And  here  another  part  of  the  constitution  comes  directly  to 
bear  upon  the  subject:  the  second  clause  of  the  sixth  article 
declares,  that  the  constitution,  laws,  and  treaties  of  the  United 
States,  shall  be  the  supreme  law  of  the  land,  and  that  the 
judges  in  every  state  shall  be  bound  thereby,  "  any  thing  in 
the  constitution  or  laws* of  any  state  to  the  contrary  not- 
withstanding. " 

Thus,  the  constitution  seems  to  have  contemplated  the  very 
case  which  is  presented  by  the  bill:  the  case  of  a  law  made  by 
a  state  in  violation  of  rights,  founded  on  treaty:  and  it  declares 
that  in  any  such  case  the  judges  shall  be  bound  by  the  treaty, 
notwithstanding  the  state  law:  a  clear  admission  that  such  a 
question  would  be  a  pro])er  question  for  judges,  that  is,  for 
judicial  decision,  and  as  clear  a  declaration  that  the  decision 
of  the  judges  shall  be  governed  by  the  treaty  as  the  sujjreme 
law. 

What  is  necessary  to  the  constitution  of  a  case  in  law  or 
equity'}  Is  any  thing  more  necessary  than  that  there  be  pro- 
per parties,  and  a  subject  matter  of  controversy  proper  for  the 
decision  of  a  court  of  law  or  a  court  of  equity?  But  we  have 
proved  by  the  constitution  that  there  are  proper  parties  here, 
and  the  bill  shows  that  it  is  a  controversy  in  which  rights  of 
property  and  of  person  are  claimed  under  a  treaty  on  the  one 
hand,  and  under  the  law  of  the  state  on  the  other;  and  the 
constitution,  clearly  contemplating  such  a  case  as  coming  before 
the  judges,  has  declared  that  the  judges  shall  be  bound  by  the 
treaty,  and  not  by  the  law  of  the  state  repugnant  thereto. 

You  have,  yourselves,  never  hesitated  to  take  jurisdiction 
by  writ  of  error  to  the  supreme  court  of  a  state,  where  the 
same  point  of  conflict  has  existed,  and  the  decision  of  the 
state  court  has  been  in  favour  of  the  validity  of  the  state  law, 
against  the  right  set  up  under  a  treaty.     You  have,  hereby. 


142  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  Slate  of  Georgia.] 

admitted  that  such  a  conflict  presents  a  case  within  the  sense 
of  the  constitution;  for,  if  it  did  not,  congress  could  not  have 
conferred  the  jurisdiction  as  it  has  done  by  the  twenty-fifth 
section  of  the  judiciary  act.  How  came  the  case  of  Hunter 
and  Fairfax  into  this  court,  if  such  a  collision  be  not  a  case 
within  the  sense  of  the  constitution?  There,  one  party  claim- 
ed property  under  the  law  of  a  state,  which  the  other  claimed 
as  protected  by  a  treaty;  and  it  was  held  to  be  a  case  proper 
for  the  jurisdiction  of  this  court,  within  the  meaning  of  the 
constitution  of  the  United  States.  And  is  not  the  case  of  con- 
flict between  the  state  law  and  the  treaty  which  existed  there, 
the  very  conflict  which  exists  and  makes  the  case  here? 
To  be  sure,  there  were  individual  jjarties  there,  and  the  case 
had  been  commenced  in  the  state  cdurt;  but  we  have  shown 
that  there  are  proper  parties  here,  and  that  they  have  a  right 
to  claim,  the  original juinsdiction  of*  this  court,  and  the  only 
remaining  question  is  about  the  character  of  the  case;  and  if 
the  case  here  presented  do  not  belong  to  the  judicial  power  of 
the  United  States,  neither  did  the  case  of  Hunter  and  Fair- 
fax belong  to  it,  nor  was  it  in  the  power  of  congress  by  the 
twenty-fifth  section  of  the  judicial  act,  nor  by  any  other  act, 
to  make  it  belong  to  it.   • 

Suppose  that  one  of  these  Cherokees  should  bring  an  action 
of  false  imprisonment  against  a  sheriff"  of  Georgia  for  arresting 
him  within  the  Cherokee  territory,  and  incarcerating  him  in 
a  prison  of  Georgia;  and  the  sheriff"  were  to  defend  himself 
under  the  authority  of  the  law  of  Georgia,  to  which  the  Che- 
rokee should  answer  that  the  law  was  unconstitutional  because 
repugnant  to  the  treaties  subsisting  between  his  nation  and 
the  United  States:  can  it  be  doubted  that  the  case  would  pro- 
perly belong  to  the  judicial  power  of  the  United  States,  and 
that  the  action  might  be  sustained  by  the  Cherokee,  if  an 
alien,  in  the  circuit  court  of  Georgia,  or,  if  not,  that  it  might 
be  brought  hither  from  the  supreme  court  of  the  state,  if  its 
decision  should  have  been  in  favour  of  the  state  law  against 
the  treaty? 

So  suppose  a  Cherokee,  having  derived  from  the  laws  of 
his  nation  an  individual  right  to  a  parcel  of  land  within  that 
territory,  should  be  ejected  from  it  by  a  Georgia  claimant 
under  the  laws  of  that  state;  would  not  such  a  case  be  a  proper 


JANUARY  TERM  1831.  143 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
one  for  the  judicial  power  of  the  United  States,  being  a  case  of 
conflict  between  a  right  claimed  under  public  treaties,  and  an 
adversary  right  claimed  under  a  state  law? 

And  if  such  a  case  would  be  a  case  within  the  meaning  of 
the  constitution  if  brought  by  individuals  in  a  federal  circuit 
court,  or  in  a  state  court,  is  it  less  a  case  within  the  meaning 
of  the  constitution,  when  presented  to  the  original  jurisdic- 
tion of  this  court  by  parties  who  have  a  right  to  claim  its  ori- 
ginal jurisdiction?  If  an  individual  Cherokee  might  maintain 
an  action  on  such  a  case  against  a  citizen  of  Georgia,  in  regard  to 
aportion  of  these  lands,  if  he  had  derived  a  separate  rightfrom 
the  laws  of  the  nation;  cannot  the  Ciierokee  nation,  who  by 
their  constitution  and  laws  own  the  whole  of  these  lands  in 
common,  bring  an  action  for  a  disturbance  of  their  possession 
against  the  state  of  Georgia,  who  asserts  an  adversary  claim 
to  the  whole  of  their  lands  in  mass?  The  state  being  suable 
by  a  foreign  state  before  this  tribunal,  and  the  Cherokee  nation 
having  been  sliown  to  be  a  foreign  state,  what  can  be  a  more 
proper  case  for  the  judicial  power  of  the  United  States  than  an 
antagonist  claim  asserted  by  a  state  of  the  union  against  a  right 
set  Op  under  along  succession  of  treaties?  In  such  a  case  the  fo- 
reign state  and  the  state  of  the  union  he.coxnQ  individual  suitors 
before  this  tribunal;  and  the  case  is  as  proper  for  this  court,  as 
a  case  for  a  part  of  the  same  subject,  litigated  on  the  same 
grounds,  by  private  individuals  befoi'e  a  circuit  court. 

The  objection  cannot  be  that  the  case  is  made  by  bodies 
politic  and  not  private  individuals,  and  that  it  involves  both 
territorial  boundary  and  jurisdiction  to  a  whole  country, 
instead  of  being  a  controversy  among  private  persons  as  to  a 
part  of  it.  For  what  is  the  case  between  the  state  of  New 
Jersey  and  the  state  of  New  York,  of  which  you  have  taken 
jurisdiction,  but  a  case  made  by  bodies  politic,  involving  both 
territorial  boundary  and  jurisdiction,  to  an  entire  country, 
without  regard  to  t)ie  private  rights  of  individuals  whose  pro- 
perty lies  along  the  disputed  line.  Your  jurisdiction  as  to 
controversies  between  a  foreign  state  and  a  state  of  the  union 
stands  upon  the  same  footing  precisely,  as  your  jurisdiction 
of  controversies  between  two  slates.  It  is  no  more  defined 
or  limited  in  the  one  case  than  the  other.  It  stands  in  the 
same  member  of  the  same  sentence,  and  is  couched  under  the 


144  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
very  same  expression  with  regard  to  both:  it  is  declared  to  ex- 
tend "  to  controversies  between  two  or  more  states,  and  be- 
tween a  state  and  a  foreign  state."  With  regard  to  both,  it 
is  as  various,  as  universal,  as  boundless  as  the  field  of  contro- 
versy itself.  It  extends  to  all  conti'oversies  (for  there  is  no 
exception  or  specification),  to  all  cases  of  disputed  right  that 
can  arise  between  such  parties,  and  which  rest  for  their  de- 
cision on  an  appeal  to  law,  whether  it  be  international  law,  or 
foreign  law,  or  the  constitution,  laws  and  treatiesof  the  United 
States.  We  are  more  familiar  with  controversies  on  a  smaller 
scale,  and  our  minds  are  habitually  contracted  to  the  contempla- 
tion of  suits  between  private  individuals  or  corporations.  But 
the  constitution  rises  to  a  bolder  and  grander  view.  It  has  crea- 
ted this  noble  and  august  tribunal  for  the  peaceable  settlement 
of  controversies  between  states  and  nations,  for  which  there 
was  formerly  no  remedy  but  by  an  appeal  to  the  sword.  v£ 
foreign  state  is  not  obliged  to  come  here  against  a  state  of 
the  union.  But,  if  she  be  peaceably  disposed,  she  may;  and 
if  this  court  shall  continue  to  maintain  the  high  standing  which  • 
it  now  holds  among  the  nations  of  the  earth,  she   ivill. 

The  erection  of  such  a  tribunal  with  such  a  jurisdiction  was  a 
sublime  conception,and  worthy  of  the  minds  which  planned  our 
constitution:  nor  can  a  more  lofty  spectacle  be  contemplated 
among  men,  than  such  a  tribunal  holding  the  balance  of  jus- 
tice with  a  steady  hand,  between  contending  states  and  na- 
tions, and  thus  superseding  the  horrors  of  war,  and  perform- 
ing the  work  of  a  God  of  peace,  on  the  earth. 

Will  it  be  said  that  this  is  not  a  judicial  but  a  political 
question;  and  that  we  are  calling  upon  this  court  to  usurp  the 
functions  of  the  executive  and  legislative  branches  of  the 
government;  in  asking  them  to  enforce  the  observance  of  a 
public  treaty?  If  we  were  calling  on  you  to  compel  the 
United  States  to  observe  a  public  treaty;  or  to  constrain  a 
foreign  state,  the  other  high  contracting  party,  to  its  obser- 
vance; the  objection  would  be  well  founded.  If  we  were  ask- 
ing you  to  entertain  jurisdiction  of  a  suit  by  Great  Britain 
against  the  United  States,  or  by  the  United  States  against 
Great  Britain,  with  regard  to  the  Canadian  boundary;  the 
objection  would  have  place.  That  is  a  controversy  between 
the  high  contracting  parties,  for  the  settlement  of  which  no 


JANUARY  TERM  1831.  145 

[The  Cherokee  Naiionus.  The  State  of  Georgia.] 
tribunal  has  been  provided,  and  no  disinterested  tribunal 
could,  in  the  nature  of  things,  be  found  in  the  courts  of  either 
nation.  Hence,  being  peaceably  disposed,  they  have  found 
it  necessary  to  resort  to  the  friendly  arbitrament  of  a  third 
power  which  stands  neutral  in  the  ease.  But  here  the  case  is 
not  between  the  high  contracting  parties.  It  is  between  one 
of  those  parties,  and  a  slate  of  the  union,  which  in  her  sepa- 
rate character  of  a  state,  in  which  she  is  sued,  is  not  a  party 
to  the  treaty,  though  she  is  bound  by  its  provisions;^  just  as 
the  individual  citizens  of  the  United  States,  though  not  in 
their  individual  character  parties  to  our  public  treaties;  are 
nevertheless  bound  by  their  provisions,  and  entitled  to  their 
protection. 

Now  the  circumstance  of  a  right  in  controversy,  growing 
out  of  a  treaty  does  not  make  that  controversy  a  political 
instead  of  di  judicial  question;  for  if  it  did,  you  could  not 
settle  those  controversies  between  individuals,  which  you 
are  continually  doin^  without  question  of  its  propriet}''.  You 
are  continually  enforcing  treaties  where  the  controversy  be- 
fore you  calls  for  their  enforcement;  and  yet  no  one  has  ever 
objected  that  you  are  interfering  with  political  questions. 
How  could  it  be  objected,  when  the  constitution  expressly 
commits  to  you  all  cases  in  law  and  equity  arising  under 
treaties? 

The  fact  then,  that  the  controversy  arises  under  a  treaty, 
or  grows  out  of  its  construction  or  validity;  does  not  make 
it  a  political  question,  so  as  to  exclude  it  from  the  jurisdiction 
of  this  court. 

Does  it  become  a  political  question,  whenever  the  right 
set  up  under  the  treaty  is  assailed  by  the  law  of  a  state?  But 
that  was  exactly  the  case  of  Hunter  and  Fairfax,  and  of  the 
recent  Astor  case  from  New  York,  the  case  of  Carver  and 
Jackson,  4  Peters,  1. 

Does  it  become  a  political  question,  because  one  of  the 
parties  to  the  suit  is  one  of  the  parties  to  the  treaty?  But 
that  party,  as  we  have  shown,  has  a  right  to  come  here  in  all 
controversies  with  a  state>  and  since  controversies  arising 
under  treaties  have  been  expressly  msidejudicial  questions 
by  the  constitution,  with  what  propriety  can  it  be  said  that 
this  is  not  a  judicial  question? 
T 


146  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

Will  it  be  said  that  it  is  not  a  judicial  but  a  political  ques- 
tion, because  we  bring  no  specific  case  before  the  court;  but  ask 
ioTdi  general  enforcement  oii\\e.  treaty?  But  wedobringa^joe- 
cific  case  before  the  court,  the  specific  title  of  the  Cherokee 
lands;  the  specific  title  of  the  jurisdiction  of  those  lands:  ques- 
tions quite  asspeci/icas  those  of  which  you  have  rightfully  taken 
jurisdiction  between  the  states  of  New  Jersey  and  New  York. 
Is  not  the  right  to  a  gold  mine  a  specific  case?  If  it  be  not, 
we  must  have  another  definition  of  a  specific  case  from  any 
that  we  have  yet  encountered. 

In  truth  every  case  is  specific  in  which  the  property  or 
right  in  controversy  is  so  described,  as  to  distinguish  and 
separate  it  from  all  other's  of  the  kind;  which  is  the  case  here 
with  regard  both  to  the  teiritory  and  jurisdiction.  It  is  the 
Cherokee  territory  described  by  metes  and  bounds;  and  it 
is  the  jurisdiction  over  that  specific  territory,  and  no  other. 
It  is  quite  as  specific  as  the  controversy  between  Penn  and 
Lord  Baltimore,  which  was  decided  by  the  high  court  of 
chancery  of  England. 

It  may  be  said  that  our  rights  rest  upon  treaties  which  it  is 
the  peculiar  function  of  the  executive  to  enforce;  that  for  an 
alleged  breach  of  a  treaty  with  a  foreign  state,  the  proper  re- 
sort of  the  foreign  state  is  to  the  president  of  the  United 
States;  and  that  it  is  his  duty,  with  the  co-operation  of  con- 
gress, either  to  redress  the  injury  or  to  repel  the  charge;  and 
that  with  this  matter  the  courts  of  the  United  States  have 
nothing  to  do. 

Now,  it  is  admitted,  that  in  such  a  case,  the  most  natural 
resort  is  to  the  president  of  the  United  States;  and  it  is  ad- 
mitted, that  it  is  his  duty  to  redress  the  injury,  if  the  means 
of  doing  so  have  been  put  at  his  disposal,  as,  in  this  case,  they 
have  been  by  the  fifth  section  of  the  Indian  intercourse  act, 
which  authorises  him  to  employ  the  military  force  of  the  na- 
tion to  remove  intruders.  But  it  does  not  by  any  means  fol- 
low, that  because  the  president  may  act  upon  the  subject,  the 
courts  shall  not,  if  the  controversy  should  take  a  judicial 
shape. 

The  president  may  restore  prizes  taken  by  cruisers  illegally 
fitted  out  in  our  ports  from  nations  with  whom  we  have  trea- 
ties of  amity,  and  this  power  was  exercised  during  president 
Washington's  administration:  the  power  still  exists:  but  if  the 


JANUARY  TERM  1831.  147 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

president  does  not  choose  to  act  upon  the  subject,  our  courts 
may  do  the  same  thing  on  a  libel  filed  for  restitution.  Ser- 
geant's Constitutional  Law,  407,  et  seq.  The  example  proves 
that  there  is  no  incongruity  in  the  co-existence  of  a  similar 
power  in  the  executive  and  judicial  branches  of  the  govern- 
ment. 

Indeed,  a  treaty  being  the  supreme  law  of  the  land,  which 
the  judges,  therefore,  are  bound  to  notice,  in  all  judicial  con- 
troversies that  may  come  before  them;  it  is  not  perceived  how 
they  can  be  relieved  from  this  responsibility  by  showing  that 
the  executive  branch  have  power  to  effect  the  same  purpose  in 
a  different  way. 

This  question  came  before  this  court  in  the  case  of  the 
United  States  against  the  schooner  Peggy,  1  Cranch,  103. 
That  schooner  had  been  captured  by  the  Turnbull,  a  public 
armed  sloop  of  the  United  States,  during  the  short  period  of 
our  hostilities  with  France  in  1799-1800,  and  had  been  con- 
demned by  the  circuit  court  as  a  lawful  prize.  An  appeal  was 
taken  to  this  court,  and,  pending  the  appeal,  the  convention 
with  France  was  made,  by  which  it  was  agreed  that  all  cap- 
tured property,  which  had  not  been  finally  condemned,  should 
be,  without  delay,  restored  or  paid  for.  It  seems  to  have 
been  argued  (for  the  argument  is  not  reported)  that  this  re- 
storation, being  in  execution  of  a  public  treaty,  was  to  be  an 
executive  act,  and  could  not  be  performed  by  i\\e  judiciary. 
In  answer  to  which  the  court  say,  "the  constitution  of  the 
United  States  declares  a  treaty  to  be  the  supreme  law  of  the 
land.  Of  consequence,  its  obligation  on  the  courts  of  the 
United   States  must  be  admitted. 

"  It  is  certainly  true  that  the  execution  of  a  contract  be- 
tween nations  is  to  be  demanded  from,  and,  in  the  gene- 
ral, superintended  by  the  executive  of  each  nation,  and, 
therefore,  whatever  the  decision  of  this  court  may  be  re- 
lative to  the  rights  of  parties  litigating  before  it,  the  claim 
upon  the  nation,  if  unsatisfied,  may  still  be  asserted.  But 
yet  where  a  treaty  is  the  law  of  the  land  and  affects 
the  rights  of  parties  litigating  in  court,  that  treaty  as 
much  binds  those  rights,  and  is  as  much  to  be  regarded 
by  the  court  as  an  act  of  congress;  and  although  re- 
storation may  be  an  executive,  when  viewed  as  a  substantive 


148  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
act,    independent  of   and    unconnected   with   other   circum- 
stances; yet  to  condemn  a  vessel,  the  restoration  of  which  is 
directed  by  the  law  of  the  land,  would  be  a  direct  infraction 
of  that  law,  and,  of  consequence,  improper." 

Hence,  although  the  expulsion  of  intruders  by  a  military 
force  from  the  lands  guarantied  by  treaty  to  the  Cheroke'es, 
may  be,  and  is  an  executive  when  viewed  as  a  substantive 
act^  yet  as  the  treaty  affects  the  rights  of  parties  litigating 
in  court,  that  treaty,  being  a  part  of  the  supreme  law  of  the 
land,  is  as  obligatory  on  the  courts  as  an  act  of  congress.  We 
do  not  ask  this  court  to  take  command  of  the  military  force  of 
the  United  States,  and  order  them  to  drive  off  intruders  from 
these  guarantied  lands,  and  to  keep  them  off  by  force;  for  this 
would  be  calling  on  them  to  perform  an  executive  act.  But 
we  come  here  with  proper  parties,  according  to  the  constitu- 
tion of  the  United  States,  and  with  a  case  properly  stated,  and 
demand  the  judgment  of  this  honourable  court  whether,  ac- 
cording to  the  supreme  law  of  the  land,  the  right  of  property 
and  right  of  jurisdiction  of  a  specif  c  territory  he  in  the 
plaintiffs  or  in  the  defendants?  The  defendants  assume  their 
superior  right,  and  are  about  to  carry  it  into  execution  by  a 
series  of  laws.  The  president,  according  to  the  allegations  of 
the  bill,  disclaims  any  power  to  regard  these  laws  of  Georgia 
as  unconstitutional. 

Perhaps  it  may  not  be  an  excciUive  power,  thus  to  pro- 
nounce on  the  laws  of  a  state.  But  we  know  that  it  is  z  judi- 
cial power  J  which  has  been  repeatedly  exercised  by  this  tri- 
bunal; and  it  is  one  which  the  constitution  devolves  upon  the 
judges  in  express  terms,  in  declaring  that  they  shall  be  bound 
by  these  treaties,  ^'-  any  thing  in  the  constitution  or  laws 
of  a  state  to  the  contrary  notwithstanding.''^  So  that  if  the 
president  be  right  in  the  position  that  this  power  does  hot  be- 
long to  him,  there  is  no  colour  for  the  imputation  that  we  are 
calling  upon  you  for  the  exercise  of  executive  functions,  when 
we  call  upon  you  to  declare  these  laws  of  Georgia  unconstitu- 
tional and  void,  as  being  repugnant  to  our  treaties.  The  pre-. 
sident  may,  for  aught  we  know,  be  waiting  for  such  a  decis- 
ion to  justify  his  action. 

There  is  another  view  of  this  subject  which  has  been  pub- 
licly suggested,  to  which  I  advert  with  reluctance,  because 


JANUARY  TERM  1831.  149 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
it  is  a  delicate  one,  and  because  I  do  not  know  that  it  will  oc- 
cur to  this  court  as  deserving  serious  attention.  But  we  are 
without  an  adversary  to  state  objections  at  the  bar,  and  we  are 
driven  to  the  necessity  of  combating  such  as  we  have  seen 
stated  elsewhere. 

The  objection  which  I  have  now  in  view  raises  the  ques- 
tion whether  the  decision  of  the  executive  upon  this  subject 
be  not  conclusive  on  the  courts  of  the  United  States.  It  is 
supposed  that,  inasmuch  as  the  execution  of  all  public  treaties 
belongs  m  general  to  the  executive,  his  construction  of  what 
the  treaty  requires,  or  does  not  require  to  be  done,  is  conclu- 
sive on  the  Judicial  branch  of  the  government. 

It  is  certainly  to  be  desired  that  the  most  perfect  harmony 
of  action  should  subsist  between  the  different  branches  of  the 
government;  but  it  would  be  paying  rather  a  high  price  for 
it  to  permit  any  one  branch  to  dictate  to  the  rest,  in  matters 
equally  binding  on  the  consciences  of  all. 

It  is  a  part  of  the  duty  of  the  executive  branch  of  the  go- 
vernment to  see  to  the  execution  of  the  acts  of  congress,  no 
less  than  of  the  treaties  of  the  United  States;  and  it  might  with 
the  same  propriety  be  contended,  that  the  construction  placed 
by  the  executive  on  an  act  of  congress  was  conclusive  on  the 
courts.  But  your  honours  know  that  this  is  not  the  case:  on 
the  contrary,  the  government  has  had  to  pay  dearly  for  the 
president's  constructions  of  divers  acts  of  congress,  which 
have  been  overruled  by  this  honourable  court.  Witness 
among  others,  the  cases  of  Gelston  and  Hoyt,  2  Wheat.  246, 
Otis  and  Walton,  2  Wheat.  18,  the  case  of  the  Apollon,  9 
Wheat.  362.  If  the  president's  construction  of  the  constitu- 
tion, laws,  and  treaties  of  the  United  States  were  to  be  final, 
he  would  only  have  to  mark  out  a  victim  to  the  courts  to  en- 
sure his  condemnation.  It  is  impossible  that  an  argument  can 
be  sound  which  would  reduce  our  constitution  to  a  despotism. 

If  the  course  of  action  of  this  court  were  to  be  controlled  by 
the  decisions  of  the  executive,  your  honours  would  often  find 
yourselves  in  a  dilemma,  from  which  it  would  be  difficult  to 
escape.     Take  the  case  before  you  as  an  illustration. 

The  argument,  which  I  am  considering,  is  supposed  to  be 
this:  it  belongs  to  the  executive  of  the  United  States,  to  de- 
termine  the   political    condition    of  foreign   countries.     We 


150  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
show  the  solemn  recognition  of  the  executive,  bi/  treaty,  for 
five  and  forty  years,  that  tlie  Cherokee  nation  is  a  foreign 
state.  Suppose  the  president,  for  the  time  being,  to  affirm 
that  these  are  not  treaties  in  the  sense  of  the  constitution,  and 
consequently  that  they  do  not  amount  to  recognition.  But  a 
former  executive,  president  Washington,  declared  that  they 
were  treaties;  and  presidents  Monroe  and  Adams  in  succession 
have  done  the  same  thing.  By  the  sentence  of  which  execu- 
tive are  you  bound?  By  that  of  the  president  for  the  time 
being?  But  your  honours  hold  your  offices  by  a  permanent 
appointment;  while  that  of  the  executive  is  temporary.  The 
consequence  is,  that  if  this  question  had  come  on  during  the 
presidency  of  General  Washington,  or  during  those  of  Mr 
Monroe  and  Mr  Adams,  these  would  have  been  treaties  and 
would  have  so  stood  upon  your  records;  while  the  renewal  of 
the  question  at  this  time  would  lead  to  the  opposite  conclu- 
sion, and  your  records  would  bear  evidence  that  they  are  not 
treaties;  and  after  the  next  election  of  President,  you  would 
probably  have  to  retrace  youT  steps,  to  return  to  your  first  de- 
cision, and  declare  that  they  are  treaties. 

Suppose,  argutnenti  gratia,  that  the  present  chief  magis- 
trate should  declare  not  only  that  these  are  not  treaties,  and  the 
guarantee  a  nullity;  but  that  the  intercourse  act  of  1802  is  un- 
constitutional and  void,  and  that  he  will  not  execute  that  law 
by  the  use  of  the  means  of  fulfilling  the  guarantee,  with  which 
that  act  has  furnished  him.  Are  you  to  follow  this  decision 
too,  because  it  is  an  executive  decision? 

But  president  Washington  declared  not  only  that  these 
were  treaties,  but  that  he  would  use  the  means  with  which 
the  constitution  had  clothed  him,  of  protecting  the  Cherokees 
against  intrusion.  Every  president  and  senate,  since,  have 
concurred:  and  presidents  Monroe  and  Adams  have  actually 
used,  against  the  state  of  Georgia,  the  means  of  fulfilling  the 
guarantee  with  which  the  act  of  1802  invested  them;  thereby 
affirming  its  constitutionality.  Is  the  court  to  follow  the  pre- 
sent chief  magistrate  in  the  opinion  that  the  act  of  1802  is  un- 
constitutional? Then  he  possesses  the  power  of  setting  aside 
an  act  of  congress  as  well  as  a  treaty,  and  all  the  powers  of  the 
government  are  united  in  his  hands:  while  the  court,  in  fol- 
lowing these  varying  decisions  of  our  changing  administra- 


JANUARY  TERM  1831.  151 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
tions,  will  exhibit  a  picture  of  vacillation  and  inconsistency 
that  might  destroy  all  the  respect  which  is  now  so  justly  and 
universally  accorded  to  them.  These  consequences  need  only 
to  be  hinted  to  expose  the  unsoundness  of  the  principle.  The 
constitution  expects  every  department  to  do  its  duty  in  its  own 
sphere.  If  either  of  them  fail,  it  meets  its  own  appropriate 
responsibility;  it  has  no  right  to  expect  any  other  to  share  in 
that  responsibility.  Following  out  this  principle,  this  honour- 
able court  has  declared  acts  of  congress,  as  well  as  acts  of  the 
state  legislatures,  unconstitutional  and  void:  has  overruled 
the  executive  construction  of  laws;  and  has  held  on  its  own 
independent  course  by  the  lights  of  its  own  reason  and  con- 
science; sustained  at  every  step,  with  increasing  confidence, 
by  the  moral  power  of  the  American  community. 

Nothing,  I  respectfully  think,  can  be  clearer  than  that  where 
a  controversy  comes  before  this  court  involving  rights  which 
are  claimed  under  a  public  treaty,  sanctioned  according  to 
the  forms  of  our  constitution,  the  validity  of  the  treaty  can- 
not be  called  in  question;  and  that  its  construction  is  to  be 
made  by  this  honourable  court,  on  their  own  independent 
views  of  the  subject.  Being  a  part  of  the  supreme  law  of  the 
land,  it  is  the  peculiar  province  of  the  court,  to  pronounce  the 
law,  wholly  uninfluenced  by  the  opinion  of  any  other  de- 
partment: and  Heaven  forbid  it  should  ever  be  otherwise. 

We  trust,  therefore,  it  has  been  made  clear  that  there  are 
proper  parties  and  a  proper  case,  for  the  exercise  of  the  juris- 
diction of  this  court. 

3.  The  only  remaining  question  is  whether  the  case  be  a 
proper  one  for  an  injunction  from  the  chancery  side  of  this 
honourable  court? 

I  can  anticipate  only  three  objections  to  the  award  of  an 
injunction. 

1st.  That  if  the  laws  of  Georgia  be  unconstitutional,  all  the 
acts  done  under  them  are  trespasses,  and  that  then  there  is  an 
adequate  remedy  at  law. 

2d.   That  a  state  cannot  be  injoined. 

3d.  That  the  Cherokee  territory  being  out  of  the  jurisdic- 
tion of  the  court,  they  cannot  take  judicial  cognizance  of  the 
subject. 

1st.   With  regard  to  the  first  objection  it  was  so  carefully 


152  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  Stale  of  Georgia.] 

considered  by  this  court  in  the  case  of  Osborne  against  the 
Bank  of  the  United  States,  9  Wheaton,  738,  that  it  would 
be  idle  to  accumulate  authorities  on  the  subject.  This  is  not 
the  case  of  a  solitary  trespass  which  may  be  repaid  in  damages; 
but  of  an  interminable  series  of  continuing  and  irreparable 
trespasses,  fraught  with  the  entire  destruction  of  these  people 
and  their  country;  a  destruction  which  would  be  consummated 
before  their  legal  title  could  be  matured  for  decision  before  a 
court  of  law.  The  principle  on  which  the  injunction  was 
supported  in  the  case  of  Osborne  applies  a  fortiori,  to  the 
present  case,  and  is  sustained  by  the  whole  current  of  autho- 
rities; Mitchell  vs.  Dors,  6  Ves.  147,  and  the  cases  collected 
in  Eden  on  Injunction,  139,  140.     7  Johns.  Chan.  Cases,  321. 

2d.  As  to  the  second  objection,  so  far  is  the  fact  of  a  state's 
being  the  defendant  from  being  an  objection,  that  in  the  case 
of  Osborne  against  the  Bank  of  the  United  States,  this  court 
observes,  that  '■^  if  the  state  of  Ohio  could  have  been  made  a 
party  defendant,  it  can  scarcely  be  denied  that  this  would  be 
a  strong  case  for  an  injunction."  Here  the  state  can  be  made 
a  party;  and  it  is  the  incessant  repetition  and  continuance  of 
the  injury  which  she  threatens  that  makes  the  injunction  the 
peculiar  and  appropriate  remedy:  for  if  the  injunction  cannot 
be  awarded,  there  can,  virtually,  be  no  remedy  at  all.  The 
injunction  will  not  act  upon  the  ideal  being,  the  state;  but,  as 
in  Osborne's  case,  it  will  act  on  the  officers  of  the  state. 

3d.  As  to  the  objection,  that  the  Indian  territory  lies  without 
the  jurisdiction  of  this  court,  there  are  two  answers,  either  of 
which  would  be  sufficient. 

The  fact  is,  that  although  the  Cherokee  nation  be  a.  foreign 
state  in  Xh^  political  meaning  of  «  foreign  state,  with  the 
sovereign  power  to  give  the  law,  exclusively,  ivithin  their 
own  territory,  yet  we  have  never  denied  that  that  territory 
is  locally  situated  within  the  chartered  limits  of  Georgia. 
This  court  has  decided,  in  Fletcher  and  Peck,  that  these  lands 
do  lie  within  the  state  of  Georgia;  that  by  virtue  of  their  ul- 
timate  domain ■)  the  state  of  Georgia  is  seised  of  \}i\Q  j)resent 
fee  in  these  lands;  and  in  the  same  case  the  court  is  understood 
as  having  virtually  decided,  that  the  title  to  these  lands,  so 
far  as  that  title  rests  upon  the  laws  of  Georgia  or  the  United 
States,  is  a  fit  subject  for  investigation  before  this  tribunal. 


JANUARY  TERM  1831.  153 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
The  second  answer  to  the  objection  is,  that  even  if  the 
lands  do  lie  beyond  the  jurisdiction  of  the  court,  yet  if  the 
parties  defendant  he  ivithin  their  jurisdiction,  a  court  of 
chancery  has  never  regarded  the  local  situation  of  the  lands  as 
a  bar  to  their  action.  They  act  upon  the  parties,  and  compel 
them  to  do  what  is  right,  or  restrain  them  from  doing  what  is 
wrong,  let  the  lands  out  of  which  the  controversy  has  grown 
lie  where  they  may.  The  maxim  is  that  sequiias  agit  in 
personam.  Hence,  in  the  case  of  Toller  vs.  Carteret,  2 
Vernon,  494,  the  court  of  chancery  in  England  decreed,  alter- 
natively, redemption  or  foreclosure  of  a  mortgage  on  lands 
in  the  island  of  Sarke  in  Normandy.  See  also  Edenon  Injunc- 
tions, 102,3,  and  the  cases  there  cited;  and  Massie  vs.  Watts, 
6  Cranch,  148,  and  the  cases  cited  by  the  court. 

Shall  we  be  asked  (the  question  has  been  asked  elsewhere) 
how  this  court  will  enforce  its  injunction  in  case  it  shall  be 
awarded?      I  answer  that  it  will  be  time  enough  to  meet  that 
question,  when  it   shall   arise.      At   present    the   question  is 
whether  the  court,  by  its  constitution,  possesses  the  jurisdic- 
tion to  which  we  appeal;  and  it  is  beginning  at  the  wrong  end 
of  the  inquiry  to  ask  how  the  jurisdiction,  if  possessed,  is  to 
be  enforced.     No  court  takes  this  course  in  deciding  such  a 
question.     They  examine  the  question  of  jurisdiction  by  the 
law  which  creates  the  tribunal  and  marks  out  its  powers  and 
duties.      If  they  find  the  jurisdiction  there,  they  exercise  it; 
and  leave  to  future  consideration  the  mode  of  enforcing  it  in 
case  it  shall  be  resisted.     In  a  land  of  laws,  the  presumption  is 
that  the  decisions  of  courts  will  be  respected;  and  in  case  they 
should  not,  it  is  a  poor  government  indeed,  in  which  there 
does  not  exist  power  to  enforce  respect.     In  the  great  case  of 
Penn  and  Lord  Baltimore,  in  which  the  boundaries  of  states 
in  North  America  were  in  question.  Lord  Hardwicke  did  not 
ask  himself  how  he   was  to  enforce  his  decree.     Although 
the  tribunal  was  parted  by  the  Atlantic  ocean  from  the  terri- 
tory in  question,  he  felt  no  embarrassment  on  that  point.     He 
took  it  for  granted,  as  he  had  a  right  to  do,  that  the  parties 
would  respect  his  decision.     Had  the  idea  even   crossed  his 
mind  of  their  proving  contumacious,  he  would  have  relied  for 
the  support  of  his  authority  on  the  general  coercive  powers 
U 


154  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
inherent  in  all  courts;  and,  these  failing,  on  the  strong  arm  of 
that  branch  of  the  government  whose  duty  it  is  to  see  that  the 
laws  be  executed.     Nor  would  his  reliance  have  been  in  vain. 

Sir,  what  is  the  value  of  that  government  in  which  the  decrees 
of  its  courts  can  be  mocked  at  and  defied  with  impunity.  Of 
that  government  did  1  say?  It  is  no  government  at  all,  or  at 
best  a  flimsy  web  of  form,  "  capable  of  holding  only  the 
feeblest  insects,  while  the  more  powerful  of  wing  break 
through  at  pleasure." 

If  a   strong   state  of  this  union  assert   a  claim  against  a 
weak   one,   which    the    latter   denies,  where    is   the   arbiter 
between  them?     Our  constitution  says  that  this  court  shall 
be  the  arbiter.     But  if  the   strong  state  refuses   to   submit 
to  your  arbitrament,  what  then?  Are  you  to  consider  whether 
you  can,  of  yourselves,  and  by  the  mere  power  inherent  in 
the  court,  enforce  your  jurisdiction,  before  you  will  exercise 
it?     Will  you  decline  a  jurisdiction  clearly  committed  to  you 
by  the  constitution,  from  the  fear  that  you   cannot  by  your 
own  powers  give  it  effect,  and  thus  test  the  extent  of  your 
jurisdiction,  not  by  the  constitution,  but  by  your  own  physi- 
cal capacity  to  enforce  it?     Then  why  have  you  taken  juris- 
diction in  the  case  of  New  Jersey  and  New  York?     The  lat- 
ter state  has  refused  obedience  to  your  summons.     She  re- 
fuses  to   appear.     You  have   determined,  nevertheless,  and 
rightfully  determined,  to  proceed  with  the  cause.     But  sup- 
pose the  question  we  are  now  considering  to  have  been  put 
to  you  in  that  case:  how  will  you  enforce  your  decree  against 
New  York?     You  tell  her  for  example,  that  the  boundary  be- 
tween the  two  states  is  that  which  New  Jersey  asserts,  and 
that  she  is  not  to  exercise  jurisdiction  beyond  that  boundary. 
New  York  laughs  at  your  decree  and  sets  it  at  defiance.     Her 
marshal  refuses  to  execute  it,  and  the  state  upholds  and  pro- 
tects him  by  force  of  arms,  in  his  disobedience.    She  will  not 
permit  him  to  be  attached  for  his  contempt,  and  defies  all  your 
process  of  execution.     New  Jersey  is  too  weak  to  enforce  it. 
If  the  possibility  of  difficulty  in  enforcing  your  decrees  is  to 
drive  you  to  a  surrender   of  your  jurisdiction,  the  argument 
applies  as  forcibly  to  the  case  of  New  Jersey  and  New  York, 
as  to  the  case  of  the  Cherokee  nation  against  the  state   of 
Georgia. 


JANUARY  TERM  1831.  155 

[The  Cherokee  Nation  vs.  The  Stale  of  Georgia.] 

But,  if  we  have  a  government  at  all,  there  is  no  diffi- 
culty in  either  case.  In  pronouncing  your  decree  you  will 
have  declared  the  law;  and  it  is  a  part  of  the  sworn  duty 
of  the  president  of  the  United  States,  to  "  take  care  that  the 
laws  be  faithfully  executed."  It  is  not  for  him,  nor  for  the 
party  defendant,  to  sit  in  appeal  on  your  decision.  The  con- 
stitution confers  no  such  power.  He  is  authorized  to  call  out 
the  military  power  of  the  country  to  enforce  the  execution 
of  the  laws.  It  is  your  function  to  say  what  the  law  is.  It 
is  his  to  cause  it  to  be  executed.  If  lie  refuses  to  perform  his 
duty,  the  constitution  has  provided  a  remedy. 

But  is  this  court  to  anticipate  that  the  president  will  not 
do  his  duty,  and  to  decline  a  given  jurisdiction  in  that 
anticipation?  Nay,  are  we  to  anticipate  that  a  defendant 
state  will  not  do  her  duty  in  submitting  to  the  decree  of 
this  court?  As  to  menaces  of  disobedience,  the  contu- 
macy of  a  state  to  the  authority  of  this  court  is  not  a 
new  occurrence.  It  occurred  in  Olmstead's  case.  Penn- 
sylvania there  took  this  menacing  attitude.  Nay,  she  went 
further,  and  drew  up  an  armed  force  in  show  of  prac- 
tical resistance.  But  was  this  court  deterred  by  this  mena- 
cing attitude?  On  the  contrary,  they  did  not  even  notice  it, 
but  moved  on  with  the  calm  and  constant  dignity  which  alone 
becomes  them,  and  Pennsylvania  gave  way,  without  striking 
a  blow.  Georgia,  heretofore,  assumed  this  same  menacing  at- 
titude towards  the  Cherokees  and  the  executive  branch  of  the 
government;  but  former  presidents  gave  her  to  understand 
that  the  United  States  would  not  permit  the  violation  of  sub- 
sisting treaties,  and  Georgia  submitted  to  the  decision. 

Sir,unless  the  government  be  false  to  the  trust  which  the  peo- 
ple have  confided  to  it,  j'our  authority  will  be  sustained.  I 
believe  that  if  the  injunction  shall  be  awarded,  there  is  a  moral 
force  in  the  public  sentiment  of  the  American  community, 
which  will,  alone,  sustain  it,  and  constrain  obedience.  At 
all  events,  let  us  do  our  duty,  and  the  people  of  the  United 
States  will  take  care  that  others  do  theirs.  If  they  do  not, 
there  is  an  end  of  the  government,  and  the  union  is  dissolved. 

For  if  the  judiciary  be  struck  from  the  system,  what  is  there 
of  any  value  that  will  remain?     Sir,  the  government  cannot 


156  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
subsist  without  it.  It  would  be  as  rational  to  talk  of  a  solar 
system  without  a  sun.  No,  sir,  the  people  of  the  United 
States  know  the  value  of  this  institution  too  well,  to  suffer 
it  to  be  put  down,  or  trammelled  in  its  action  by  the  dic- 
tates of  others.  It  will  be  sustained  in  whatever  course  its 
own  wisdom,  patriotism  and  virtues  shall  direct,  by  the  re- 
spect, the  affections,  the  suffrage,  and,  if  necessary,  by  the 
arms  of  the  country.  It  has  been  an  object  of  reverence  to  the 
best  and  wisest  men  of  our  country,  from  the  first  movements 
of  our  constitution  to  the  present  day.  It  has  been  considered 
by  them  all  as  the  key-stone  of  our  political  arch,  the  crown 
of  its  beauty,  and  the  bond  of  its  strength:  nor  will  the  people 
suffer  it  to  be  touched  by  rash  and  unskilful  hands,  for  the 
worst  of  purposes,  in  the  worst  of  times,  even  if  there  are  any 
among  us  so  hardy  as  to  meditate  it.  If,  then,  I  am  asked 
how  the  injunction  of  this  court,  if  granted,  is  to  be  enforced, 
I  answer,  fearlessly,  by  the  majesty  of  the  people  of  the 
United  States,  before  which,  canting  anarchy  (under  the  pros- 
tituted name  of  patriotism)  and  presuming  ignorance,  if  they 
exist,  will  hide  their  heads. 

Sir,  I  have  done. 

I  have  presented  to  you  all  the  views  that  have  occurred 
to  me  as  bearing  materially  on  this  question.  I  have  en- 
deavoured to  satisfy  you  that,  according  to  the  supreme 
law  of  the  land,  yon  have  before  you  proper  parties  and 
a  proper  case  to  found  your  original  jurisdiction:  that  the 
case  is  one  which  warrants  and  most  imperiously  demands 
an  injunction,  and,  unless  its  aspect  be  altered  by  an  answer 
and  evidence  (which  I  confidently  believe  it  cannot  be),  that 
if  there  ever  was  a  case  which  called  for  a  decree  of  perpetual 
peace,  this  is  the  case. 

It  is  with  no  ordinary  feelings  that  I  am  about  to  take  leave 
of  this  cause.  The  existence  of  this  remnant  of  a  once  great 
and  mighty  nation  is  at  stake,  and  it  is  for  your  honours  to 
say,  whether  they  shall  be  blotted  out  from  the  creation,  in 
utter  disregard  of  all  our  treaties.  They  are  here  in  the  last 
extremity,  and  with  them  must  perish  for  ever  the  honour  of 
the  American  name.  The  faith  of  our  nation  is  fatally  linked 
with   their  existence,    and    the   blow  which  destroys  them 


JANUARY  TERM  1831.  157 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
quenches  for  ever  our  own  glory:  for  what  glory  can  there  be 
of  which  a  patriot  can  be  proud,  after  the  good  name  of  his 
Country  shall  have  departed?  We  may  gather  laurels  on  the 
field  and  trophies  on  the  ocean,  but  they  will  never  hide  this 
foul  and  bloody  blot  upon  our  escutcheon.  "  Remember,  the 
Cherokee  nation"  will  be  answer  enough  to  the  proudest 
boasts  that  we  can  ever  make — answer  enough  to  cover  with 
confusion  the  face  and  the  heart  of  every  man  among  us  in 
whose  bosom  the  last  spark  of  grace  has  not  been  extin- 
guished. Such,  it  is  possible,  there  may  be,  who  are  willing 
to  glory  in  their  own  shame,  and  to  triumph  in  the  disgrace 
which  they  are  permitted  to  heap  upon  this  nation.  But, 
thank  heaven,  they  are  comparatively  few.  The  great  majo- 
rity of  the  American  people  see  this  subject  in  its  true  light. 
They  have  hearts  of  flesh  in  their  bosoms,  instead  of  hearts  of 
stone,  and  every  rising  and  setting  sun  witnesses  the  smoke 
of  the  incense  from  the  thousands  and  tens  of  thousands  of  do- 
mestic altars,  ascending  to  the  throne  of  grace  to  invoke  its 
guidance  and  blessing  on  your  councils.  The  most  undoubt- 
ing  confidence  is  reposed  in  this  tribunal. 

We  know  that  whatever  can  be  properly  done  for  this  un- 
fortunate people  will  be  done  by  this  honourable  court. 
Their  cause  is  one  that  must  come  home  to  every  honest 
and  feeling  heart.  They  have  been  true  and  faithful  to  us 
and  have  a  right  to  expect  a  corresponding  fidelity  on  our 
part.  Through  a  long  course  of  years  they  have  followed  our 
counsel  with  the  docility  of  children.  Our  wish  has  been 
their  law.  We  asked  them  to  become  civilized,  and  they 
became  so.  They  assumed  our  dress,  copied  our  names,  pur- 
sued our  course  of  education,  adopted  our  form  of  govern- 
ment, embraced  our  religion,  and  have  been  proud  to  imitate 
us  in  every  thing  in  their  power.  They  have  watched  the 
progress  of  our  prosperity  with  the  strongest  interest,  and  have 
marked  the  rising  grandeur  of  our  nation  with  as  much  pride 
as  if  they  had  belonged  to  us.  They  have  even  adopted  our 
resentments;  and  in  our  war  with  the  Seminole  tribes,  they 
voluntarily  joined  our  arms,  and,  gave  effectual  aid  in  driving 
back  those  barbarians  from  the  very  state  that  now  oppresses 
them.     They  threw  upon  the  field  in  that  war,   a  body  of 


158  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
men,  who  proved  by  their  martial  bearing,  their  descent  from 
the  noble  race  that  were  once  the  lords  of  these  extensive 
forests — men  worthy  to  associate  with  the  "  lion,"  who,  in 
their  own  language,  "  walks  upon  the  mountain  tops. "(a) 
They  fought  side  by  side  with  our  present  chief  magistrate, 
and  received  his  repeated  thanks  for  their  gallantry  and 
conduct. 

May   it   please  your  honours,    they  have  refused  to    us 
no   gratification  which  it  has  been  in  their  power   to  grant. 
We  asked  them   for  a  portion  of  their  lands,  and  they  ceded 
it.     We  asked  them  again  and  again,  and  they  continued  to 
cede  until  they  have  now  reduced  themselves  within  the  nar- 
rowest   compass   that    their   own    subsistence    will   permit. 
What  return    are   we   about  to  make  to    them   for   all   this 
Idndness?     We  have  pledged,  for  their  protection  and  for  the 
guarantee  of  the  remainder  of  their  lands,  the  faith  and  honour 
of  our  nation ;  a  faith  and  honour  never  sullied,  nor  even  drawn 
j    into  question  until  now.     We  promised  them, and  they  trusted 
I   us.      The^/  have  trusted  us.     Shall  they  he  deceived?     They 
would   as  soon  expect  to  see  their  rivers  run  upwards   on 
their  sources,  or  the  sun  roll  back  in  his  career,  as  that  the 
I   United  States  would  prove  false  to  them,  and   false  to  the 
\  word  so  solemnly  pledged  by  their  Washington,  and  renewed 
\  and  perpetuated  by  his  illustrious  successors. 

Is  this  the  high  mark  to  which  the  American  nation  has  been 
so  strenuously  and  successfully  passing  forward?  Shall  we  sell 
the  mighty  meed  of  our  high  honours,  at  so  worthless  a  price, 
and  in  two  short  years,  cancel  all  the  glory  which  we  have 
been  gaining  before  the  world,  for  the  last  half  century?  For- 
bid it,  Heaven ! 

I  will  hope  for  better  things.  There  is  a  spirit  that 
will  yet  save  us.  I  trust  that  we  shall  find  it  here,  in  this 
sacred  court;  where  no  foul  and  malignant  demon  of 
party  enters  to  darken  the  understanding  or  to  deaden  the 
heart,  but  where  all  is  clear,  calm,  pure,  vital  and  firm.  I 
cannot  believe  that  this  honourable  court,  possessing  the 
power  of  preservation,  will    stand  by,  and   see  these  people 

(a)  The  Chieftain  Ridge. 


JANUARY  TERM  1831.  159 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
stripped  of  their  property  and  extirpated  from  the  earth, 
while  they  are  holding  up  to  us  their  treaties  and  claiming 
the  fulfilment  of  our  engagements.  If  truth  and  faith  and 
honour  and  justice  have  fled  from  every  other  part  of  our 
country,  we  shall  find  them  here.  If  not, — our  sun  has  gone 
down  in  treachery,  blood  and  crime,  in  the  face  of  the  world; 
and,  instead  of  being  proud  of  our  country,  as  heretofore,  we 
may  well  call  upon  the  rocks  and  mountains  to  hide  our  shame 
from  earth  and  heaven. 

Mr  Chief  Juistice  Marshall  delivered  the  opinion  of 
the  Court: 

This  bill  is  brought  by  the  Cherokee  nation,  praying  an 
injunction  to  restrain  the  state  of  Georgia  from  the  execution 
of  certain  laws  of  that  state,  which,  as  is  alleged,  go  directly  to 
annihilate  the  Cherokees  as  a  political  society,  and  to  seize,  for 
the  use  of  Georgia,  the  lands  of  the  nation  which  have  been 
assured  to  them  by  the  United  States  in  solemn  treaties  re- 
peatedly made  and  still  in  force. 

If  courts  were  permitted  to  indulge  their  sympathies,  a  case 
better  calculated  to  excite  them  can  scarcely  be  imagined.     A 
people   once   numerous,    powerful,   and   truly   independent, 
found  by  our  ancestors  in  the  quiet  and  uncontrolled  possess- 
ion of  an  ample  domain,  gradually  sinking  beneath  our  supe-i 
rior  policy,  our  arts  and  our  arms,  have  yielded  their  lands  by  I 
successive  treaties,  each  of  which  contains  a  solemn  guarantee 
of  the  residue,  until  they  retain  no  more  of  their  formerly  ex- ' 
tensive  territory  than  is  deemed  necessary  to  their  comfortable! 
subsistence.     To  preserve  this  remnant,  the  present  application 
is  made. 

Before  we  can  look  into  the  merits  of  the  case,  a  prelimi- 
nary inquiry  presents  itself.  Has  this  court  jurisdiction  of 
the  cause? 

The  third  article  of  the  constitution  describes  the  extent  of 
the  judicial  power.  The  second  section  closes  an  enumera- 
tion of  the  cases  to  which  it  is  extended,  with  '''controver- 
sies" "  between  a  state  or  the  citizens  thereof,  and  foreign 
states,  citizens,  or  subjects."  A  subsequent  clause  of  the  same 
section   gives  the  supreme  court  original  jurisdiction  in  all 


160  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
cases  in  which  a  state  shall  be  a  party.     The  party  defendant 
may  then    unquestionably  be  sued  in   this   court.     May   the 
plaintiff  sue  in  it?     Is  the  Cherokee  nation  a  foreign  state  in 
the  sense  in  which  that  term  is  used  in  the  constitution? 

The  counsel  for  the  plaintiffs  have  maintained  the  affirma- 
tive of  this  proposition  with  great  earnestness  and  ability. 
So  much  of  the  argument  as  was  intended  to  prove  the  char- 
acter of  the  Cherokeesas  a  state,  as  a  distinct  political  society, 
1/  separated  from  others,  capable  of  managing  its  own  affairs  and 
governing  itself,  has,  in  theopmion  of  a  majority  of  the  judges, 
been  completely  successful.  They  have  been  uniformly  treated 
as  a  state  from  the  settlement  of  our  country.  The  numerous 
treaties  made  with  them  by  the  United  States  recognize  them 
as  a  people  capable  of  maintaining  the  relations  of  peace  and 
war,  of  being  responsible  in  their  political  character  for  any 
violation  of  their  engagements,  or  for  any  aggression  com- 
mitted on  the  citizens  of  the  United  States  by  any  individual 
■  of  their  community.  Laws  have  been  enacted  in  the  spirit 
of  these  treaties.  The  acts  of  our  government  plainly  recog- 
nize the  Cherokee  nation  as  a  state,  and  the  courts  are  bound 
by  those  acts. 

A  question  of  much  more  difficulty  remains.  Do  the  Che- 
rokees  constitute  a  foreign  state  in  the  sense  of  the  constitu- 
tion? 

The  counsel  have  shown  conclusively  that  they  are  not  a 
state  of  the  union,  and  have  insisted  that  individually  they  are 
aliens,  not  owing  allegiance  to  the  United  States.  An  aggre- 
gate of  aliens  composing  a  state  must,  they  say,  be  a  foreign 
state.  Each  individual  being  foreign,  the  whole  must  be 
foreign. 

This  argument  is  imposing,  but  we  must  examine  it  more 
closely  before  we  yield  to  it.  The  condition  of  the  Indians 
in  relation  to  the  United  States  is  perhaps  unlike  that  of  any 
other  two  people  in  existence.  In  the  general,  nations  not 
owing  a  common  allegiance  are  foreign  to  each  other.  The 
term  foreign  nation  is,  with  strict  propriety,  applicable  by 
either  to  the  other.  But  the  relation  of  the  Indians  to  the 
United  States  is  marked  by  peculiar  and  cardinal  distinctions 
which  exist  no  where  else. 


JANUARY  TERM  1831.  161 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
The  Indian  territory  is  admitted  to  compose  a  part  of  the 
United  States.  In  all  our  maps,  geographical  treatises,  histo- 
ries, and  laws,  it  is  so  considered.  In  all  our  intercourse 
with  foreign  nations,  in  our  commercial  regulations,  in  any 
attempt  at  intercourse  between  Indians  and  foreign  nations, they 
are  considered  as  within  the  jurisdictional  limits  of  the  United 
States,  subject  to  many  of  those  restraints  which  are  imposed 
upon  our  own  citizens.  They  acknowledge  themselves  in  their 
treaties  to  be  under  the  protection  of  the  United  States;  they 
admit  that  the  United  States  shall  have  the  sole  and  exclusive 
right  of  regulating  the  trade  with  them,  and  managing  all 
their  affairs  as  they  think  proper;  and  the  Cherokees  in 
particular  were  allowed  b}'-  the  treaty  of  Hopewell,  which  pre- 
ceded the  constitution,  '<  to  send  a  deputy  of  then-  choice, 
whenever  they  think  fit,  to  congress."  Treaties  were  made 
with  some  tribes  by  the  state  of  New  York,  under  a  then  un- 
settled construction  of  the  confederation,  by  which  they  ceded 
all  their  lands  to  that  state,  taking  back  a  lim.ited  grant  to 
themselves,  in  which  they  admit  their  dependence. 

Though  the  Indians  are  acknowledged  to  have  an  unques- 
tionable, and,  heretofore,  unquestioned  right  to  the  lands  they 
occupy,  until  that  right  shall  be  extinguished  by  a  voluntary 
cession  to  our  government;  yet  it  may  well  be  doubted  whether 
those  tribes  which  reside  within  the  acknowledged  boundaries 
of  the  United  States  can,  with  strict  accuracy,  be  denominated 
foreign  nations.  They  may,  more  correctly,  perhaps,  be  de- 
nominated domestic  dependent  nations.  They  occupy  a  ter- 
ritory to  which  we  assert  a  title  independent  of  their  will, 
which  must  take  effect  in  point  of  possession  when  their  right 
of  possession  ceases.  Meanwhile  thej'  are  in  a  state  of  pu- 
pilage. Their  relation  to  the  United  States  resembles  that  of 
a  ward  to  his  guardian. 

They  look  to  our  government  for  protection;  rely  upon  its 
kindness  and  its  power;  appeal  to  it  for  relief  to  their  wants; 
and  address  the  president  as  their  great  father.  They  and 
their  country  are  considered  by  foreign  nations,  as  well  as  by 
ourselves,  as  being  so  completely  under  the  sovereignty  and 
dominion  of  the  United  States,  that  any  attempt  to  acquire 
their  lands,  or  to  form  a  political  connexion  with  then:,  would 
V 


162  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  Stale  of  Georgia.] 
be  considered  by  all  as  an   invasion  of  our  territory,  and  an 
act  of  hostility. 

These  considerations  go  far  to  support  the  opinion,  that  the 
framers  of  our  constitution  had  not  the  Indian  tribes  in  view, 
when  they  opened  the  courts  of  the  union  to  controversies 
between  a  state  or  the  citizens  thereof,  and  foreign  states. 

In  considering  this  subject,  the  habits  and  usages  of  the 
Indians,  in  their  intercourse  with  their  white  neighbours,  ought 
not  to  be  entirely  disregarded.  At  the  time  the  constitution 
was  framed,  the  idea  of  appealing  to  an  American  court  of 
justice  for  an  assertion  of  right  or  a  redress  of  wrong,  had 
perhaps  never  entered  the  mind  of  an  Indian  or  of  his  tribe. 
Their  appeal  was  to  the  tomahawk,  or  to  the  government. 
This  was  well  understood  b)'  the  statesmen  who  framed  the 
constitution  of  the  United  States,  and  might  furnish  some  rea- 
son for  omitting  to  enumerate  them  among  the  parties  who 
might  sue  in  the  courts  of  the  union.  Be  this  as  it  may,  the 
peculiar  relations  between  the  United  States  and  the  Indians 
occupying  our  territory  are  such,  that  we  should  feel  much 
difficulty  in  considering  them  as  designated  by  the  term  foreign 
state,  were  there  no  other  part  of  the  constitution  which  might 
shed  light  on  the  meaning  of  these  words.  But  we  think  that 
in  construing  them,  considerable  aid  is  furnished  by  that  clause 
in  the  eighth  section  of  the  third  article;  which  empowers  con- 
gress to  "regulate  commerce  with  foreign  nations, and  among 
the  several  states,  and  with  the  Indian  tribes." 

In  this  clause  they  are  as  clearly  contradistinguished  by  a 
name  appropriate  to  themselves,  from  foreign  nations,  as 
from  the  several  states  composing  the  union.  They  are  de- 
signated by  a  distinct  appellation;  and  as  this  appellation  can 
be  applied  to  neither  of  the  others,  neither  can  the  appellation 
distinguishing  either  of  the  others  be  in  fair  construction  ap- 
plied to  them.  The  objects,  to  which  the  power  of  regulating 
commerce  might  be  directed,  are  divided  into  three  distinct 
classes — foreign  nations,  the  several  states,  and  Indian  tribes. 
When  forming  this  article,  the  convention  considered  them 
as  entirely  distinct.  We  cannot  assume  that  the  distinction 
was  lost  in  framing  a  subsequent  article,  unless  there  be 
something  in  its  language  to  authorize  the  assumption. 

The  counsel  for  the  plaintiffs  contend  that  the  words  <'  In- 


JANUARY  TERM  1831.  163 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
dian  tribes"  were  introduced  into  the  article,  empowering 
congress  to  regulate  commerce,  for  the  purpose  of  removing 
those  doubts  in  which  the  management  of  Indian  affairs  was 
involved  by  the  language  of  the  ninth  article  of  the  confede- 
ration. Intending  to  give  the  whole  power  of  managing  those 
affairs  to  the  government  about  to  be  instituted,  the  conven- 
tion conferred  it  explicitly;  and  omitted  those  qualifications 
which  embarrassed  the  exercise  of  it  as  granted  in  the  confed- 
eration. This  may  be  admitted  without  weakening  the  con- 
struction which  has  been  intimated.  Had  the  Indian  tribes 
been  foreign  nations,  in  the  view  of  the  convention;  this  ex- 
clusive power  of  regulating  intercourse  with  them  might  have 
been,  and  most  probably  would  have  been,  specifically  given, 
in  language  indicating  that  idea,  not  in  language  contradis- 
tinguishing them  from  foreign  nations.  Congress  might 
have  been  empowered  "to  regulate  commerce  with  for- 
eign 'nations,  including  the  Indian  tribes,  and  among  the 
several  states."  This  language  would  have  suggested  it- 
self to  statesmen  who  considered  the  Indian  tribes  as  foreign 
nations,  and  were  yet  desirous  of  mentioning  them  particularly. 
It  has  been  also  said,  that  the  same  words  have  not  necessa- 
rily the  same  meaning  attached  to  them  when  found  in  differ- 
ent parts  of  the  same  instrument:  their  meaning  is  con- 
trolled by  the  context.  This  is  undoubtedly  true.  In  com- 
mon language  the  same  word  has  various  meanings,  and  the 
peculiar  sense  in  which  it  is  used  in  any  sentence  is  to  be  de- 
termined by  the  context.  This  may  not  be  equally  true  with 
respect  to  proper  names.  Foreign  nations  is  a  general  term, 
the  application  of  which  to  Indian  tribes,  when  used  in  the 
American  constitution,  is  at  best  extremely  questionable.  In 
one  article  in  which  a  power  is  given  to  be  exercised  in  regard 
to  foreign  nations  generally,  and  to  the  Indian  tribes  particu- 
larly, they  are  mentioned  as  separate  in  terms  clearly  contra- 
distinguishing them  from  each  other.  We  perceive  plainly 
that  the  constitution  in  this  article  does  not  comprehend  In- 
dian tribes  in  the  general  term  '' foreign  nations;"  not  we 
presume  because  a  tribe  may  not  he  a  nation,  but  because  it  is 
not  foreign  to  the  United  States.  When,  afterwards,  the  term 
"foreign  state"  is  introduced,  we  cannot  impute  to  the  conven- 
tion the  intention  to  desert  its  former  meaning,  and  to  com- 
prehend Indian  tribes  within  it,  unless  the  context  force  that 


164  SUPREME   COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
construction  on   us.     We  find  nothing  in  the  context,  and 
nothing  in  the  subject  of  the  article,  which  leads  to  it. 

The  court  has  bestowed  its  best  attention  on  this  question, 
and,  after  mature  deliberation,  the  majority  is  of  opinion  that 
an  Indian  tribe  or  nation  within  the  United  States  is  not 
a  foreign  state  in  the  sense  of  the  constitution,  and  cannot 
maintain  an  action  in  the  courts  of  the  United  States. 

A  serious  additional  objection  exists  to  the  jurisdiction  of 
the  court.  Is  the  matter  of  the  bill  the  proper  subject  for  ju- 
dicial inquiry  and  decision?  It  seeks  to  restrain  a  state  from 
the  forcible  exercise  of  legislative  power  over  a  neighbouring 
people,  asserting  their  independence;  their  right  to  which  the 
state  denies.  On  several  of  the  matters  alleged  in  the  bill, 
for  example  on  the  laws  making  it  criminal  to  exercise  the 
usual  powers  of  self  government  in  their  own  country  by  the 
Cherokee  nation,  this  court  cannot  interpose;  at  least  in  the 
form  in  which  those  matters  are  presented. 

That  part  of  the  bill  which  respects  the  land  occupied  by  the 
Indians,and  prays  the  aid  of  the  court  to  protect  their  possession, 
may  be  more  doubtful.  The  mere  question  of  right  might  per- 
haps be  decided  by  this  court  in  a  proper  case  with  proper  parties. 
But  the  court  is  asked  to  do  more  than  decide  on  the  title.  The 
bill  requires  us  to  control  the  legislature  of  Georgia,  and  to 
restrain  the  exertion  of  its  physical  force.  The  propriety  of 
such  an  interposition  by  the  court  may  be  well  questioned. 
It  savours  too  much  of  the  exercise  of  political  power  to  be 
within  the  proper  province  of  the  judicial  department.  But 
the  opinion  on  the  point  respecting  parties  makes  it  unne- 
cessary to  decide  this  question. 
»  If  it  be  true  that  the  Cherokee  nation  have  rights,  this  is 
/  not  the  tribunal  in  which  those  rights  are  to  be  asserted.  If 
I  it  be  true  that  wrongs  have  been  inflicted,  and  that  still  greater 
are  to  be  apprehended,  this  is  not  the  tribunal  which  can  re- 
dress the  past  or  prevent  the  future. 

The  motion  for  an  injunction  is  denied. 

Mr  Justice  Johnson. — In  pursuance  of  my  practice  in  giving 
an  opinion  on  all  constitutional  questions,  I  must  present  my 
'  views  on  this.     With  the  morality  of  the  case  I  have  no  con- 
cern; I  am  called  upon  to  consider  it  as  a  legal  question. 


JANUARY  TERM  1831.  165 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

The  object  of  this  bill  is  to  claim  the  interposition  of  this 
court  as  the  means  of  preventing  the  state  of  Georgia,  or  the 
public  functionaries  of  the  state  of  Georgia,  from  asserting 
certain  rights  and  powers  over  the  country  and  people  of  the 
Cherokee  nation. 

It  is  not  enough,  in  order  to  come  before  this  court  for  re- 
lief, that  a  case  of  injury,  or  of  cause  to  apprehend  injury, 
should  be  made  out.  Besides  having  a  cause  of  action,  the 
complainant  must  bring  himself  within  that  description  of  par- 
ties, who  alone  are  permitted,  under  the  constitution,  to  bring 
an  original  suit  to  this  court. 

It  is  essential  to  such  suit  that  a  state  of  this  union  should 
be  a  party;  so  says  the  second  member  of  the  second  section 
of  the  third  article  of  the  constitution:  the  other  party  must, 
under  the  control  of  the  eleventh  amendment,  be  another  state 
of  the  union,  or  a  foreign  state.  In  this  case,  the  averment  is, 
that  the  complainant  is  a  foreign  state. 

Two  preliminary  questions  then  present  themselves. 

1.  Is  the  complainant  a  foreign  state  in  the  sense  of  the  con- 
stitution? 

2.  Is  the  case  presented  in  the  bill  one  of  judicial  cog- 
nizance? 

Until  these  questions  are  disposed  of,  we  have  no  right  to 
look  into  the  nature  of  the  controversy  any  farther  than  is  ne- 
cessary to  determine  them.  The  first  of  the  questions  necess- 
arily resolves  itself  into  two. 

1.  Are  the  Cherokees  a  state? 

2.  Are  they  a  foreign  state? 

1.  I  cannot  but  think  that  there  are  strong  reasons  for  doubt- 
ing the  applicability  of  the  epithet  state,  to  a  people  so  low 
in  the  grade  of  organized  society  as  our  Indian  tribes  most 
generally  are.  I  would  not  here  be  understood  as  speaking 
of  the  Cherokees  under  their  present  form  of  government; 
which  certainly  must  be  classed  among  the  most  approved 
forms  of  civil  government.  Whether  it  can  be  yet  said  to 
have  received  the  consistency  which  entitles  that  people  to 
admission  into  the  family  of  nations  is,  I  conceive,  yet  to  be 
determined  by  the  executive  of  these  states.  Until  then  I 
must  think  that  we  cannot  recognize  it  as  an  existing  state, 


166  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
under  any  other  character  than  that  which  it  has  maintained 
hitherto  as  one  of  the  Indian  tribes  or  nations. 

There  are  great  difficulties  hanging  over  the  question,  whe- 
ther they  can  be  considered  as  states  under  the  judiciary 
article  of  the  constitution.  1.  They  never  have  been  recognized 
as  holding  sovereignty  over  the  territory  they  occupy.  It  is 
in  vain  now  to  inquire  into  the  sufficiency  of  the  principle,  that 
discovery  gave  the  right  of  dominion  over  the  country  discov- 
ered. When  the  populous  and  civilized  nations  beyond  the 
Cape  of  Good  Hope  were  visited,  the  right  of  discovery  was 
made  the  ground  of  an  exclusive  right  to  their  trade,  and  con- 
fined to  that  limit.  When  the  eastern  coast  of  this  continent, 
and  especially  the  part  we  inhabit,  was  discovered,  finding  it 
occupied  by  a  race  of  hunters,  connected  in  society  by  scarcely 
a  semblance  of  organic  government;  the  right  was  extended  to 
the  absolute  appropriation  of  the  territory,  the  annexation  of  it 
to  the  domain  of  the  discoverer.  It  cannot  be  questioned  that 
the  right  of  sovereignty,  as  well  .as  soil,  was  notoriously  ass- 
erted and  exercised  by  the  European  discoverers.  From 
that  source  we  derive  our  rights,  and  there  is  not  an  in- 
stance of  a  cession  of  land  from  an  Indian  nation,  in  which  the 
right  of  sovereignty  is  mentioned  as  a  part  of  the  matter  ceded. 

It  may  be  suggested  that  they  were  uniformly  cessions  of  land 
without  inhabitants;  and,  therefore,  words  competent  to  make 
a  cession  of  sovereignty  were  unnecessary.  This,  however,  is 
not  a  full  answer,  since  soil,  as  well  as  people,  is  the  object 
of  sovereign  action,  and  may  be  ceded  with  or  without  the 
sovereignty,  or  may  be  ceded  with  the  express  stipulation  that 
the  inhabitants  shall  remove.  In  all  the  cessions  to  us  from 
the  civilized  states  of  the  old  world,  and  of  our  transfers  among 
ourselves,  although  of  the  same  property,  under  the  same  cir- 
cumstances, and  even  when  occupied  by  these  very  Indians, 
the  express  cession  of  sovereignty  is  to  be  found. 

In  the  very  treaty  of  Hopewell,  the  language  or  evidence  of 
which  is  appealed  to  as  the  leading  proof  of  the  existence  of  this 
supposed  state,  we  find  the  commissioners  of  the  United  States 
expressing  themselves  in  these  terms.  "The  commissioners 
plenipotentiary  of  the  United  States  give  peace  to  all  theChero- 
kees,  and  receive  them  into  the  favour  and  protection  of  the 


JANUARY  TERM  1831.  167 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
United  States  on  the  following  conditions."     This  is  cer- 
tainly the  language  of  sovereigns  and  conquerors,  and  not  the 
address  of  equals  to  equals.     And  again,  when  designating 
the  country  they  are  to  be  confined  to,  comprising  the  very 
territory  which  is  the  subject  of  this  bill,  they  say,  "  Art.  4. 
The  boundary  allotted  to  the  Cherokees  for  their  hunt- 
ing grounds"  shall  be  as  therein  described.     Certainly  this 
is  the  language  of  concession  on  our  part,  not  theirs;  and  when 
the  full  bearing  and  efiect  of  those  words,  "  for  their  hunting 
grounds,"  is  considered,  it  is  difficult  to  think  that  they  were 
then  regarded  as  a  state,  or  even  intended  to  be  so  regarded. 
It  is  clear  that  it  was  intended  to  give  them  no  other  rights 
over  the  territory  than  what  were  needed  by  a  race  of  hun- 
ters; and  it  is  not  easy  to  see  how  their  advancement  beyond 
that  state  of  society  could  ever  have  been  promoted,  or,  per- 
haps, permitted,  consistently  with  the  unquestioned  rights  of  the 
states,  or  United  States,  over  the  territory  within  their  limits. 
The  pre-emptive  right,  and  exclusive  right  of  conquest   in 
case  of  war,  was  never  questioned  to  exist  in  the  states,  which 
circumscribed  the  whole  or  any  part  of  the  Indian  grounds  or 
territory.   To  have  taken  it  from  them  by  direct  means  would 
have  been  a  palpable  violation  of  their  rights.     But  every  ad- 
vance, from  the  hunter  state  to  a  more  fixed  state  of  society, 
must  have  a  tendency  to  im.pair  that  pre-emptive  right,  and 
ultimately  to  destroy  it  altogether,  both  by  increasing  the  In- 
dian population,  and  by  attaching  them  firmly  to  the  soil. 
The  hunter  state  bore  within  itself  the  promise  of  vacating  the 
territory,  because  when  game  ceased,  the  hunter  would  go 
elsewhere  to  seek  it.     But  a  more  fixed  state  of  society  would 
amount  to  a  permanent  destruction  of  the  hope,  and,  of  conse- 
quence, of  the  beneficial  character  of  the  pre-emptive  right 

But  it  is  said,  that  we  have  extended  to  them  the  means  and 
inducement  to  become  agricultural  and  civilized.  It  is  true: 
and  the  immediate  object  of  that  policy  was  so  obvious  as  pro- 
bably to  have  intercepted  the  view  of  ulterior  consequences. 
Independently  of  the  general  influence  of  humanity,  these 
people  were  restless,  warlike,  and  signally  cruel  in  their  irrup- 
tions during  the  revolution.  The  policy,  therefore,  of  enti- 
cing them  to  the  arts  of  peace,  and  to  those  improvements 
which  war  might  lay  desolate,  was  obvious;  and  it  was  wise 


168  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
to  prepare  them  for  what  was  probably  then  contemplated,  to 
wit,  to  incorporate  them  in  time  into  our  respective  govern- 
ments: a  policy  which  their  inveterate  habits  and  deep  seated 
enmity  has  altogether  baffled.  But  the  project  of  ultimately 
organizins:  them  into  states,  within  the  limits  of  those  states 
which  had  not  ceded  or  should  not  cede  to  the  United  States 
the  jurisdiction  over  the  Indian  territory  within  their  bounds, 
could  not  possibly  have  entered  into  the  contemplation  of  our 
government.  Nothing  but  express  authority  from  the  states 
could  have  justified  such  a  policy,  pursued  with  such  a  view. 
To  pursue  this  subject  a  little  more  categorically. 
If  these  Indians  are  to  be  called  a  state:  then, 

1.  By  whom  are  they  acknowledged  as  such? 

2.  When  did  they  become  so? 

3.  And  what  are  the  attributes  by  which  they  are  identi- 
fied with  other  states. 

As  to  the  first  question,  it  is  clear,  that  as  a  state  they  are 
known  to  nobody  on  earth,  but  ourselves,  if  to  us:  how  then 
can  they  be  said  to  be  recognized  as  a  member  of  the  commu- 
nity of  nations?  Would  any  nation  on  earth  treat  with  them 
as  such?  Suppose  when  they  occupied  the  banks  of  the  Miss- 
issippi or  the  sea  coast  of  Florida,  part  of  which  in  fact  the 
Seminoles  now  occupy,  they  had  declared  war  and  issued  let- 
ters of  marque  and  reprisal  against  us  or  Great  Britain,  would 
their  commissions  be  respected?  If  known  as  a  state,  it  is  by 
us  and  us  alone;  and  what  are  the  proofs?  The  treaty  of  Hope- 
well does  not  even  give  them  a  name  other  than  that  of  the 
Indians;  not  even  nation  or  state:  but  regards  them  as  what 
they  were,  a  band  of  hunters,  occupying  as  hunting  gromids, 
just  what  territory  we  chose  to  allot  them.  And  almost  every 
attribute  of  sovereignty  is  renounced  by  them  in  that  very 
treaty.  They  acknowledge  themselves  to  be  under  the  sole 
and  exclusive  protection  of  the  United  States.  They  receive 
the  territory  allotted  to  them  as  a  boon,  from  a  master  or  con- 
queror; the  right  of  punishing  intruders  into  that  territory  is 
conceded,  not  asserted  as  a  right;  and  the  sole  and  exclusive 
right  of  regulating  their  trade  and  managing  all  their  afiairs 
in  such  manner  as  the  government  of  the  United  States  shall 
think  proper;  amounting  in  terms  to  a  relinquishment  of  all 


JANUARY  TERM  1831.  169 

[The  Cherokee  Nation  rs.  The  State  of  Georgia.] 

power,  legislative,  executive  and  judicial  to  the  United  States, 
is  yielded  in  the  ninth  article. 

It  is  true,  that  the  twelfth  article  gives  power  to  the  In- 
dians to  send  a  deputy  to  congress;  but  such  deputy,  though 
dignified  by  the  name,  was  nothing  and  could  be  nothing  but 
an  agent,  such  as  any  other  company  might  be  represented  by. 
It  cannot  be  supposed  that  he  was  to  be  recognized  as  a  minis- 
ter, or  to  sit  in  the  congress  as  a  delegate.  There  is  nothing 
express  and  nothing  implied,  that  would  clothe  him  with  the 
attributes  of  either  of  these  characters.  As  to  a  seat  among 
the  delegates,  it  could  not  be  granted  to  him. 

There  is  one  consequence  that  would  necessarily  flow  from 
the  recognition  of  this  people  as  a  state,  which  of  itself  must 
operate  greatly  against  its  admission. 

Where  is  the  rule  to  stop?  Must  every  petty  kraal  of  In- ' 
dians,  designating  themselves  a  tribe  or  nation, and  having  a  few 
hundred  acres  of  land  to  hunt  on  exclusively,  be  recognized  as 
a  state?  We  should  indeed  force  into  the  family  of  nations,  a 
very  numerous  and  very  heterogeneous  progeny.  The  Catavv- 
bas,  having  indeed  a  few  more  acres  than  the  republic  of  San 
Marino,  but  consisting  only  of  eighty  or  an  hundred  polls, 
would  then  be  admitted  to  the  same  dignity.  They  still  claim 
independence,  and  actually  execute  their  own  penal  laws,  such 
as  they  are,  even  to  the  punishment  of  death;  and  have  recently 
done  so.  We  have  many  ancient  treaties  with  them;  and  no 
nation  has  been  more  distinctly  recognized,  as  far  as  such  re- 
cognition can  operate  to  communicate  the  character  of  a  state. 

But  secondly,  at  what  time  did  this  people  acquire  the 
character  of  a  state? 

Certainly  not  by  the  treaty  of  Hopewell;  for  every  provision 
of  that  treaty  operates  to  strip  it  of  its  sovereign  attributes; 
and  nothing  subsequent  adds  any  thing  to  that  treaty,  except 
using  the  word  nation  instead  of  Indians.  And  as  to  that 
article  in  the  treaty  of  Holston,  and  repeated  in  the  treaty  of 
Tellico,  whicli  guaranties  to  them  their  territory,  since  both 
those  treaties  refer  to  and  confirm  the  treaty  of  Hopewell; 
on  what  principle  can  it  be  contended  that  the  guarantee  can 
go  farther  than  to  secure  to  them  that  right  over  the  territory, 
which  is  conceded  by  the  Hopewell  treaty;  which  interest  is 
only  that  of  hunting  grounds.  The  general  policy  of  the 
W 


170  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
United  States,  which  always  looked  to  these  Indian  lands  as  a 
certain  future  acquisition,  not  less  than  the  express  words  of 
the  treaty  of  Hopewell,  must  so  decide  the  question. 

If  they  were  not  regarded  as  one  of  the  family  of  nations 
at  the  time  of  that  treaty,  even  though  at  that  time  first  sub- 
dued and  stripped  of  the  attributes  of  a  state,  it  is  clear  that, 
to  be  regarded  now  as  a  state,  they  must  have  resumed  their 
rank  among  nations  at  some  subsequent  period.  But  at  what 
subsequent  period?  Certainly  by  no  decisive  act  until  they 
organized  themselves  recently  into  a  government;  and  I  have 
before  remarked  that,  until  expressly  recognized  by  the  execu- 
tive under  that  form  of  government,  we  cannot  recognize  any 
change  in  their  form  of  existence.  Others  have  a  right  to  be 
consulted  on  the  admission  of  new  states  into  the  national 
family.  When  this  country  was  first  appropriated  or  con- 
quered by  the  crown  of  Great  Britain,  they  certainly  were 
not  known  as  members  of  the  community  of  nations;  and  if 
they  had  been,  Great  Britain  from  that  time  blotted  them 
from  among  the  race  of  sovereigns.  From  that  time  Great 
Britain  considered  them  as  her  subjects  whenever  she  chose 
to  claim  their  allegiance;  and  their  country  as  hers,  both  in  soil 
and  sovereignty.  All  the  forbearance  exercised  towards  them 
was  considered  as  voluntary;  and  as  their  trade  was  more 
valuable  to  her  than  their  territory,  for  that  reason,  and  not  from 
any  supposed  want  of  right  to  extend  her  laws  over  them,  did 
she  abstain  from  doing  so. 

And,  thirdly,  by  what  attributes  is  the  Cherokee  nation 
identified  with  other  states? 

The  right  of  sovereignty  was  expressly  assumed  by  Great 
Britain  over  their  country  at  the  first  taking  possession  of  it; 
and  has  never  since  been  recognized  as  in  them,  otherwise 
than  as  dependent  upon  the  will  of  a  superior. 

The  right  of  legislation  is  in  terms  conceded  to  congress  by 
the  treaty  of  Hopewell,  whenever  they  choose  to  exercise  it. 
And  the  right  of  soil  is  held  by  the  feeble  tenure  of  hunting 
grounds,  and  acknowledged  on  all  hands  subject  to  a  restric- 
tion to  sell  to  no  one  but  the  United  States,  and  for  no  use  but 
that  of  Georgia. 

They  have  in  Europe  sovereign  and  demi-sovereign  states 
and    states  of  doubtful   sovereignty.     But  this  state,  if  it  be 


JANUARY  TERM  1831.  171 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
a  state,  is  still  a  grade  below  them  all:  for  not  to  be  able  to 
alienate  without   permission  of  the  remainder-man  or    lord, 
places  them  in  a  state  of  feudal  dependence. 

However,  I  will  enlarge  no  more  upon  this  point;  because 
1  believe,  in  one  view  and  in  one  only,  if  at  all,  they  are  or 
may  be  deemed  a  state,  though  not  a  sovereign  state,  at  least 
while  they  occupy  a  country  within  our  limits.  Their  condi- 
tion is  something  like  that  of  the  Israelites,  when  inhabiting 
the  deserts.  Though  without  land  that  they  can  call  theirs  in 
the  sense  of  property,  their  right  of  personal  self  government 
has  never  been  taken  from  them;  and  such  a  form  of  govern- 
ment may  exist  though  the  land  occupied  be  in  fact  that  of 
another.  The  right  to  expel  them  may  exist  in  that  other, 
but  the  alternative  of  departing  and  retaining  th&right  of  self 
government  may  exist  in  them.  And  such  they  certainly  do 
possess;  it  has  never  been  questioned,  nor  any  attempt  made 
at  subjugating  them  as  a  people,  or  restraining  their  personal 
liberty  except  as  to  their  land  and  trade. 

But  in  no  sense  can  they  be  deemed  a  foreign  state,  under 
the  judiciary  article. 

It  does  seem  unnecessary  on  this  point  to  do  more  than  put 
the  question,  whether  the  makers  of  the  constitution  could 
have  intended  to  designate  them,  when  using  the  epithets 
^'foreign"  and  "  state."  State,  and  foreign  state,  are  used  in 
contradistinction  to  each  other.  We  had  then  just  emerged 
ourselves  from  a  situation  having  much  stronger  claims  than 
the  Indians  for  admission  into  the  family  of  nations;  and  yet  we 
were  not  admitted  until  we  had  declared  ourselves  no  longer 
provinces  but  states,  and  shown  some  earnestness  and  capa- 
city in  asserting  our  claim  to  be  enfranchised.  Can  it  then  be 
supposed,  that  when  using  those  terms  we  meant  to  include  any 
others  than  those  who  were  admitted  into  the  community  of 
nations,  of  whom  most  notoriously  the  Indians  were  no  part? 
The  argument  is  that  they  were  states;  and  if  not  states  of 
the  union,  must  be  foreign  states.  But  I  think  it  very  clear 
that  the  constitution  neither  speaks  of  them  as  states  or  foreign 
states,  but  as  just  what  they  were,  Indian  tribes;  an  anomaly 
unknown  to  the  books  that  treat  of  states,  and  which  the  law 
of  nations  would  regard  as  nothing  more  than  wandering j 
hordes,  held  together  only  by  ties  of  blood  and   habit,  and  || 


172  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
having  neither  laws  or  government,  beyond  what  is  required 
in  a  savage  state.  The  distinction  is  clearly  made  in  that 
section  which  vests  in  congress  power  to  regulate  commerce 
between  the  United  States  with  foreign  nations  and  the  Indian 
tribes. 

The  language  must  be  applied  in  one  of  three  senses;  either 
in  that  of  the  law  of  nations,  or  of  the  vernacular  use,  or  that 
of  the  constitution.  In  the  first,  although  it  means  any  state 
not  subject  to  our  laws,  yet  it  must  be  a  state  and  not  a  hunter 
horde:  in  the  vernacular,  it  would  not  be  applied  to  a  people 
within  our  limits  and  at  our  very  doors:  and  in  the  constitu- 
tion the  two  epithets  are  used  in  direct  contradistinction.  The 
latter  words  were  unnecessary,  if  the  first  included  the  Indian 
tribes.  There  is  no  ambiguity,  though  taken  literally;  and  if 
there  were,  facts  and  circumstances  altogether  remove  it. 

But  had  I  been  sitting  alone  in  this  cause,  I  should  have 
waived  the  consideration  of  personal  description  altogether; 
and  put  my  rejection  of  this  motion  upon  the  nature  of  the 
claim  set  up,  exclusively. 

I  cannot  entertain  a  doubt  that  it  is  one  of  a  political  char- 
acter altogether,  and  wholly  unfit  for  the  cognizanceof  a  judi- 
cial tribunal.  There  is  no  possible  view  of  the  subject,  that 
I  can  perceive^  in  which  a  court  of  justice  can  take  jurisdiction 
of  the  questions  made  in  the  bill.  The  substance  of  its  allega- 
tions may  be  thu^  set  out. 

That  the  complainants  have  been  from  time  immemorial 
lords  of  the  soil  they  occupy.  That  the  limits  by  which  they 
hold  it  have  been  solemnly  designated  and  secured  to  them  by 
treaty  and  by  laws  of  the  United  States.  That  within  those 
limits  they  have  rightfully  exercised  unlimited  jurisdiction, 
passing  their  own  laws  and  administering  justice  in  their  own 
way.  That  in  violation  of  their  just  rights  so  secured  to 
them,  the  state  of  Georgia  has  passed  laws,  authorizing  and 
requiring  the  executive  and  judicial  powers  of  the  state  to 
enter  their  territory  and  put  down  their  public  functionaries. 
That  in  pursuance  of  those  laws  the  functionaries  of  Georgia 
have  entered  their  territory,  with  an  armed  force,  and  put  down 
all  powers  legislative,  executive  and  judicial,  exercised  under 
the  government  of  the   Indians. 

What  does  this  series  of  allegations  exhibit  but   a   state 


JANUARY  TERM  1831.  173 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
of  war,  and  the  fact  of  invasion?  They  allege  themselves  to 
be  a  sovereign  independent  state,  and  set  out  that  another 
sovereign  state  has,  by  its  laws,  its  functionaries,  and  its 
armed  force,  invaded  their  state  and  put  down  their  au- 
thority. This  is  war  in  fact;  though  not  being  declared 
with  the  usual  solemnities,  it  may  perhaps  be  called  war  i 
in  disguise.  And  the  contest  is  distinctly  a  contest  for 
empire.  It  is  not  a  case  of  meum  and  iuum  in  the  judicial 
but  in  the  political  sense.  Not  an  appeal  to  laws  but  to  force. 
A  case  in  which  a  sovereign  undertakes  to  assert  his  right  up- 
on his  sovereign  responsibility;  to  right  himself,  and  not  to 
appeal  to  any  arbiter  but  the  sword,  for  the  justice  of  his 
cause.  If  the  state  of  Maine  were  to  extend  its  laws  over  the 
province  of  New  Brunswick,  and  send  its  magistrates  to  carry 
them  into  effect,  it  would  be  a  parallel  case.  In  the  Nabob  of 
Arcot's  case  (4  Bro.  Cha.  Ca.  and  1  and  2  Vesey,  Jun.),  a  case 
of  a  political  character  not  one  half  so  strongly  marked  as 
this;  the  courts  of  Great  Britain  refused  to  take  jurisdiction, 
because  it  had  its  origin  in  treaties  entered  into  between  sove- 
reign states:  a  case  in  which  the  appeal  is  to  the  sword  and  to 
Almighty  justice,  and  not  to  courts  of  law  or  equity.  In  the 
exercise  of  sovereign  right,  the  sovereign  is  sole  arbiter  of  his 
own  justice.     The  penalty  of  wrong  is  war  and  subjugation. 

But  there  is  still  another  ground  in  this  case,  which  alone 
would  have  prevented  me  from  assuming  jurisdiction;  and  that 
is  the  utter  impossibility  of  doing  justice,  at  least  even  handed 
justice,  between  the  parties.  As  to  restoring  the  complainant 
to  the  exercise  of  jurisdiction,  it  will  be  seen  at  once  that  that 
is  no  case  for  the  action  of  a  court;  and  as  to  quieting  him  in 
possession  of  the  soil,  what  is  the  case  on  which  the  complain- 
ant would  have  this  court  to  act?  Either  the  Cherokee  nation 
are  a  foreign  state,  or  they  are  not.  If  they  are  not,  then  they 
cannot  come  here;  and  if  they  are,  then  how  can  we  extend 
our  jurisdiction  into  their  country? 

We  are  told  that  we  can  act  upon  the  public  functionaries 
in  the  state  of  Georgia,  without  the  limits  of  the  nation. 
But  suppose  that  Georgia  should  file  a  cross-bill,  as  she  cer- 
tainly may,  if  we  can  entertain  jurisdiction  in  this  case;  and 
should  in  her  bill  claim  to  be  put  in  possession  of  the  whole 
Indian  country;  and  we  should  decide  in  her  favour;  how  is 


174  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
that  decree  to  be  carried  into  effect?  Say  as  to  soil;  as  to 
jurisdiction  it  is  not  even  to  be  considered.  From  the  com- 
plainant's own  showing  we  could  not  do  justice  between 
the  parties.  Nor  must  I  be  considered  as  admitting  that  this 
court  could  even  upon  the  other  alternative  exercise  a  juris- 
diction over  the  person,  respecting  lands  under  the  juris- 
diction of  a  foreign  nation.  I  know  of  no  such  instance.  In 
Penn  vs.  Lord  Baltimore,  the  persons  were  in  England  and 
the  land  within  the  king's  dominions  though  in  America. 

There  is  still  another  view  in  which  this  cause  of  action  may 
be  considered  in  regard  to  its  political  nature.  The  United 
Slates  finding  themselves  involved  in  conflicting  treaties,  or 
at  least  in  two  treaties  respecting  the  same  property,  under 
which  two  parties  assert  conflicting  claims;  one  of  the  parties, 
putting  itself  upon  its  sovereign  right,  passes  laws  which  in 
effect  declare  the  laws  and  treaties  under  which  the  other 
party  claims,  null  and  void.  It  proceeds  to  carry  into  effect 
those  laws  by  means  of  physical  force;  and  the  other  party 
appeals  to  the  executive  department  for  protection.  Being 
disappointed  there,  the  party  appeals  to  this  court,  indirectly 
to  .compel  the  executive  to  pursue  a  course  of  policy,  which 
his  sense  of  duty  or  ideas  of  the  law  may  indicate  should  not 
be  pursued.  That  is,  to  declare  war  against  a  state,  or  to  use 
the  public  force  to  repel  the  force  and  resist  the  laws  of  a 
state,  when  his  judgment  tells  him  the  evils  to  grow  out  of 
such  a  course  may  be  incalculable. 

What  these  people  may  have  a  right  to  claim  of  the  execu- 
tive power  is  one  thing:  whether  we  are  to  be  the  instruments 
to  compel  another  branch  of  the  government  to  make  good 
the  stipulations  of  treaties,  is  a  very  different  question.  Courts 
of  justice  are  properly  excluded  from  all  considerations  of 
policy,  and  therefore  are  very  unfit  instruments  to  control  the 
action  of  that  branch  of  government;  v/hich  may  often  be 
compelled  by  the  highest  considerations  of  public  policy  to 
:  withhold  even  the  exercise  of  a  positive  duty. 

There  is  then  a  great  deal  of  good  sense  in  the  rule  laid 
down  in  the  Nabob  of  Arcot's  case,  to  wit,  that  as  between 
sovereigns,  breaches  of  treaty  were  not  breaches  of  contract 
cognizable  in  a  court  of  justice;  independent  of  the  general 
principle  that  for  their  political  acts  states  were  not  amenable 
to  tribunals  of  justice. 


JANUARY  TERM  1831.  175 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

There  is  yet  another  view  of  this  subject,  which  forbids 
our  taking  jurisdiction.  There  is  a  law  of  the  United  States, 
which  purports  to  make  every  trespass  set  out  in  the  bill  to  be 
an  offence  cognizable  in  the  courts  of  the  United  States.  I 
mean  the  act  of  1802,  which  makes  it  penal  to  violate  the  In- 
dian territory. 

The  infraction  of  this  law  is  in  effect  the  burden  of  complaint. 
What  then  in  fact  is  this  bill,  but  a  bill  to  obtain  an  injunc- 
tion against  the  commission  of  crimes?  If  their  territory  has 
been  trespassed  upon  against  the  provisions  of  that  act,  no 
law  of  Georgia  could  repeal  that  act  or  justify  the  violation 
of  its  provisions.  And  the  remedy  lies  in  another  court  and 
form  of  action,  or  another  branch  of  jurisprudence. 

I  cannot  take  leave  of  the  case  without  one  remark  upon 
the  leading  argument,  on  which  the  exercise  of  jurisdiction 
here  over  cases  occurring  in  the  Indian  country  has  been 
claimed  for  the  complainant.  Which  was,  that  the  United 
States  in  fact  exercised  jurisdiction  over  it  by  means  of  this 
and  othfer  acts,  to  punish  offences  committed  there. 

But  this  argument  cannot  bear  the  test  of  principle.  For 
the  jurisdiction  of  a  country  may  be  exercised  over  her  citi- 
zens wherever  they  are,  in  right  of  their  allegiance;  as  it  has 
been  in  the  instance  of  punishing  offences  committed  against 
the  Indians.  And,  also,  both  under  the  constitution  and  the 
treaty  of  Hopewell,  the  power  of  congress  extends  to  regu- 
lating their  trade,  necessarily  v/ithin  their  limits.  But  this 
cannot  sanction  the  exercise  of  jurisdiction  beyond  the  policy 
of  the  acts  themselves;  which  are  altogether  penal  in  their 
provisions. 

I  vote  for  rejecting  the  motion. 

Mr  Justice  Baldwin. — As  jurisdiction  is  the  first  question 
which  must  arise  in  every  cause,  I  have  confined  my  exami- 
nation of  this,  entirely  to  that  point,  and  that  branch  of  it 
which  relates  to  the  capacity  of  the  plaintiffs  to  ask  the  inter- 
position of  this  court.  I  concur  in  the  opinion  of  the  court 
in  dismissing  the  bill,  but  not  for  the  reasons  assigned. 

In  my  opinion  there  is  no  plaintiff  in  this  suit;  and  this 
opinioii  precludes  any  examination  into  the  inerits  of  the  bill, 
or  the  weight  of  any  minor  objections.     My  judgment  stops 


176  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
me  at  the  threshold,  and  forbids  me  to  examine  into  the  acts 
complained  of. 

As  the  reasons  for  the  judgment  of  the  court  seem  to  me 
more  important  than  the  judgment  itself,  in  its  effects  on  the 
peace  of  the  country  and  the  condition  of  the  complain- 
ants, and  as  I  stand  alone  on  one  question  of  vital  concern  to 
both;  I  must  give  my  reasons  in  full.  The  opinion  of  this 
court  is  of  high  authority  in  itself;  and  the  judge  who  delivers 
it  has  a  support  as  strong  in  moral  influence  over  public  opin- 
ion, as  any  human  tribunal  can  impart.  The  judge,  who  stands 
alone  in  decided  dissent  on  matters  of  the  infinite  magnitude 
which  this  case  presents,  must  sink  under  the  continued  and 
unequal  struggle;  unless  he  can  fix  himself  by  a  firm  hold  on 
the  constitution  and  laws  of  the  country.  He  must  be  presumed 
to  be  in  the  wrong,  until  he  proves  himself  to  be  in  the  right. 
Not  shrinking  even  from  this  fearful  issue,  I  proceed  to  con- 
sider the  only  question  which  I  shall  ever  examine  in  rela- 
tion to  the  rights  of  Indians  to  sue  in  the  federal  courts,  until 
convinced  of  my  error  in  my  present  convictions. 

My  view  of  the  plaintiffs  being  a  sovereign  independent 
nation  or  foreign  state,  within  the  meaning  of  the  constitu- 
tion, applies  to  all  the  tribes  with  whom  the  United  States 
have  held  treaties:  for  if  one  is  a  foreign  nation  or  state,  all 
others  in  like  condition  must  be  so  in  their  aggregate  capa- 
city; and  each  of  their  subjects  or  citizens,  aliens,  capable 
of  suing  in  the  circuit  courts.  This  case  then  is  the  case  of 
the  countless  tribes,  who  occupy  tracts  of  our  vast  domain; 
who,  in  their  collective  and  individual  characters,  as  states  or 
aliens,  will  rush  to  the  federal  courts  in  endless  controversies, 
growing  out  of  the  laws  of  the  states  or  of  congress. 

In  the  spirit  of  the  maxim  obsta  principiis,  I  shall  first  pro- 
ceed to  the  consideration  of  the  proceedings  of  the  old  con- 
gress, from  the  commencement  of  the  revolution  up  to  the 
adoption  of  the  constitution;  so  as  to  ascertain  whether  the 
Indians  were  considered  and  treated  with  as  tribes  of  savages, 
or  independent  nations,  foreign  states  on  an  equality  with 
any  other  foreign  state  or  nation;  and  whether  Indian  affairs 
were  viewed  as  those  of  foreign  nations,  and  in  connection 
with  this  view,  refer  to  the  acts  of  the  federal  government  on 
the  same  subject. 


JANUARY  TERM  1831.  17T 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

In  1781  (1  Laws  U.  S.  586,  &c.)  a  department  for  for- 
eign affairs  was  established,  to  which  was  entrusted  all  cor- 
respondence and  communication  with  the  ministers  or  other 
officers  of  foreign  powers,  to  be  carried  on  through  that  office; 
also  with  the  governors  and  presidents  of  the  several  states; 
and  to  receive  the  applications  of  all  foreigners,  letters 
of  sovereign  powers,  plans  of  treaties,  conventions,  &c.  and 
other  acts  of  congress  relative  to  the  department  of  foreign 
affairs;  and  all  communications  as  well  to  as  from  the  United 
States  in  congress  assembled  were  to  be  made  through  the 
secretary,  and  all  papers  on  the  subject  of  foreign  affairs  to  be 
addressed  to  him.  The  same  department  was  established  un- 
der the  present  constitution  in  1789,  and  with  the  same  ex- 
clusive control  over  all  the  foreign  concerns  of  this  govern- 
ment with  foreign  states  or  princes.  2  Laws  U.  S.  6, 
7.  In  July  1775,  congress  established  a  department  of  In- 
dian affairs,  to  be  conducted  under  the  superintendence  of 
commissioners.  1  Laws  U.'  S.  597.  By  the  ordinance  of 
August  1786,  for  the  regulation  of  Indian  affairs,  they  were 
placed  under  the  control  of  the  war  department,  1  Laws 
U.  S.  614,  continued  there  by  the  act  of  August  1789  (2 
Laws  U.  S.  32,  33),  under  whose  direction  they  have  ever 
since  remained.  It  is  clear  then,  that  neither  the  old  or  new 
government  did  ever  consider  Indian  affairs,  the  regulation  of 
our  intercourse  or  treaties  with  them,  as  forming  any  part  of 
our  foreign  affairs  or  concerns  with  foreign  nations,  states,  or 
princes. 

I  will  next  inquire  how  the  Indians  were  considered; 
whether  as  independent  nations  or  tribes,  with  whom  our  in- 
tercourse must  be  regulated  by  the  law  of  circumstances.  In 
this  examination  it  will  be  found  that  different  words  have 
been  applied  to  them  in  treaties  and  resolutions  of  congress; 
nations,  tribes,  hordes,  savages,  chiefs,  sachems  and  warriors 
of  the  Cherokees  for  instance,  or  the  Cherokee  nation.  I 
shall  not  stop  to  inquire  into  the  effect  which  a  name  or  title 
can  give  to  a  resolve  of  congress,  a  treaty  or  convention  with 
the  Indians,  but  into  the  substance  of  the  thing  done,  and  the 
subject  matter  acted  on:  believing  it  requires  no  reasoning  to 
prove  that  the  omission  of  the  words p7'ince,  siate,  sovereign- 
ty or  nation,  cannot  divest  a  contracting  party  of  these  na- 
X 


178  SUPREME  COURT.' 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
tional  attributes,  which  are  inherent  in  sovereign  power  pre 
and  self  existing,  or  confer  them  by  their  use,  .where  all  the 
substantial  requisites  of  sovereignty  are  wanting. 

The  proceedings  of  the  old  congress  will  be  found  in  1, 
Laws  U.  S.  597,  commencing  1st.  June  1775,  and  ending 
1st  September  1788,  of  which  some  extracts  will  be 
given.  30th  June  1775,  "Resolved,  that  the  committee  for 
Indian  afiairs  do  prepare  proper  talks  to  the  several  tribes  of 
Indians.  As  the  Indians  depend  on  the  colonists  for  arms, 
ammunition  and  clothing,  which  are  become  necessary  for 
their  subsistence."  "That  the  commissioners  have  pow- 
er to  treat  w^ith  the  Indians;"  "  to  take  to  their  assist- 
ance gentlemen  of  influence  among  the  Indians."  "To 
preserve  the  confidence  and  friendship  of  the  Indians,  and 
prevent  their  suflfering  for  want  of  the  necessaries  of  life, 
£40,000  sterling  of  Indian  goods  be  imported."  "No 
person  shall  be  permitted  to  trade  with  the  Indians  without 
a  licence;"  "traders  shall  sell  their  goods  at  reasonable 
prices;  allow  them  to  the  Indians  for  their  skins,  and  take  no 
advantage  of  their  distress  and  intemperance;"  "  the  trade 
to  be  only  at  posts  designated  by  the  commissioners."  Spe- 
cimens of  the  kind  of  intercourse  between  the  congress  and 
deputations  of  Indians  may  be  seen  in  pages  602  and  603. 
They  need  no  incorporation  into  a  judicial  opinion. 

In  1782,  a  committee  of  congress  report,  that  all  the  lands 
belonging  to  the  six  nations  of  Indians  have  been  in  due 
form  put  under  the  crown  as  appendant  to  the  government 
of  New  York,  so  far  as  respects  jurisdiction  only;  that 
that  colony  has  borne  the  burthen  of  protecting  and  sup- 
porting the  six  nations  of  Indians  and  their  tributaries  for  one 
hundred  years,  as  the  dependents  and  allies  of  that  govern- 
ment; that  the  crown  of  England  has  always  considered  and 
treated  the  country  of  the  six  nations  as  one  appendant  to  the 
government  of  New  York;  that  they  have  been  so  recogniz- 
ed and  admitted  by  their  public  acts  by  Massachusetts,  Con- 
necticut, Pennsylvania,  Maryland  and  Virginia;  that  by  ac- 
cepting this  cession,  the  jurisdiction  of  the  whole  west- 
ern territory,  belonging  to  the  six  nations  and  their  tributa- 
ries, will  be  vested  in  the  United  States,  greatly  to  the  ad- 
vantage of  the  union  [p.  606],     The  cession  alluded  to  is  the 


JANUARY  TERM  1831.  179 

[The  Cherokee  Nation  vs.  The  Slate  of  Georgia.] 
one  from  New  York,  March  1st,  1781,  of  the  soil  and  juris- 
diction of  all  the  land  in  their  charter  west  of  the  present 
boundary  of  Pennsylvania  (1    Laws  U.  S.  471),  which  was 
executed  in  congress  and  accepted. 

This  makes  it  necessary  to  break  in  on  the  historical  trace 
of  our  Indian  affairs,  and  follow  up  this  subject  to  the  adop- 
tion of  the  constitution.  The  cession  from  Virginia  in  1784 
was  of  soil  and  jurisdiction.  So  from  Massachusetts  in  1785, 
from  Connecticut  in  1800,  from  South  Carolina  in  1787, 
from  Georgia  in  1802.  North  Carolina  made  a  partial  ces- 
sion of  land,  but  a  full  one  of  her  sovereignty  and  jurisdic- 
tion of  all  without  her  present  limits  in  1789.  2  Laws  United 
States  85. 

Some  states  made  reservations  of  lands  to  a  small  amount, 
but,  by  the  terms  of  the  cession,  new  states  were  to  be  formed 
within  the  ceded  boundaries,  to  be  admitted  into  the  union 
on  an  equal  footing  with  the  original  states;  of  course,  not 
shorn  of  their  powers  of  sovereignty  and  jurisdiction  within 
the  boundaries  assigned  by  congress  to  the  new  states.  In 
this  spirit  congress  passed  the  celebrated  ordinance  of  July 
1787,  by  which  they  assumed  the  government  of  the  north 
western  territory,  paying  no  regard  to  Indian  jurisdiction, 
sovereignty,  or  their  political  rights,  except  providing  for  their 
protection  ;  authorizing  the  adoption  of  laws  "  which,  for 
the  prevention  of  crimes  and  injuries,  shall  have  force  in  all 
parts  of  the  district;  and  for  the  execution  of  process  civil  and 
criminal,  the  governor  has  power  to  make  proper  division 
thereof."  1  Laws  United  States,  477.  By  the  fourth  article 
the  said  territory/,  and  the  states  which  may  be  formed 
therein,  shall  forever  remain  a  part  of  this  confederacy  of  the 
United  States;  subject  to  the  articles  of  confederation,  altera- 
tions constitutionally  made,  the  acts  and  ordinances  of  con- 
gress. 

This  shows  the  clear  meaning  and  understanding  of  all  the 
ceding  states,  and  of  congress,  in  accepting  the  cession  of  their 
western  lands  up  to  the  time  of  the  adoption  of  the  constitu- 
tion. The  application  of  these  acts  to  the  provisions  of  the 
constitution  will  be  considered  hereafter.  A  few  more  refer- 
ences to  the  proceedings  of  the  old  congress  in  relation  to  the 
Indian  nations  will  close  this  view  of  the  case. 


180  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  Stale  of  Geoigia.] 
In  17S2,  a  committee,  to  whom  was  referred  a  letter  from 
the  secretary  at  war,  reported  '<  that  they  have  had  a  confer- 
ence with  the  two  deputies  from  the  Catawba  nation  of  In- 
dians; that  their  mission  respects  certain  tracts  of  land  re- 
served for  their  use  in  the  state  of  South  Carolina,  which  they 
wish  may  be  so  secured  to  their  tribe,  as  not  to  be  intruded 
into  by  force,  nor  alienated  even  with  their  own  consent: — 
whereupon,  resolved,  that  it  be  recommended  to  the  legisla- 
ture of  South  Carolina  to  take  such  measures  for  the  satisfac- 
tion and  security  of  the  said  tribe,  as  the  said  legislature  shall 
in  their  wisdom  think  fit."  1  Laws  United  States,  667. 
After  this,  the  Catawbas  cannot  well  be  considered  an  inde- 
pendent nation  or  foreign  state.  In  September  1783,  shortly 
after  the  preliminary  treaty  of  peace,  congress,  exercising  the 
powers  of  acknowledged  independence  and  sovereignty,  is- 
sued a  proclamation  beginning  in  these  words;  "  whereas,  by 
the  ninth  of  the  articles  of  confederation,  it  is,  among  other 
things  declared,  that  the  United  States,  in  congress  assembled, 
have  the  sole  and  exclusive  right  and  power  of  regulating  the 
trade,  and  managing  all  affairs  with  the  Indians  not  members 
of  any  of  the  states,  provided  that  the  legislative  right  of  every 
state,  within  its  own  limits,  be  not  infringed  or  violated," 
prohibiting  settlements  on  lands  inhabited  or  claimed  by  In- 
dians, without  tlie  limits  or  jurisdiction  of  any  particular  state, 
and  from  purchasing  or  receiving  gifts  of  land,  without  the 
express  authority  and  directions  of  the  United  States  in 
congress  assembled.  Conventions  were  to  be  held  with 
the  Indians  in  the  northern  and  middle  departments  for  the 
purpose  oi  receiving  them  into  the  favour  and  protection  of 
the  United  States,  and  of  establishing  boundary  lines  of  pro- 
perty/, for  separating  and  dividing  the  settlements  of  the 
citizens  from  the  Indian  villages  and  hunting  grounds,  &c. 
**  Resolved  that  the  preceding  measures  of  congress,  rela- 
tive to  Indian  affairs,  shall  not  be  construed  to  affect  the 
territorial  claims  of  any  of  the  states,  or  their  legislative 
rights  within  their  respective  limits.  Resolved,  that  it  will 
be  wise  and  necessary  to  erect  a  distj-ict  of  the  western 
territory  into  a  distinct  government,  and  that  a  committee 
be  appointed  to  prepare  a  plan  for  a  temporary  government 
until  the  inhabitants   shall  form  a  "  permanent  constitution 


JANUARY  TERM  1831.  181 

[The  Cherokee  Nation  vs.  The  Slate  of  Georgia.] 
for  themselves,  and  as  citizens  of  a  free,  sovereign,  and 
independent  state,  be  admitted  to  a  representation  in  the 
union."  In  1786,  a  general  ordinance  was  passed  for  the 
regulation  of  Indian  affairs  under  the  authority  of  the  ninth 
article  of  the  confederation,  which  throws  much  light  on  our 
relations  with  them.  P.  614.  It  closes  with  a  direction,  that 
in  all  cases  where  transactions  with  an)''  nation  or  tribe  of  In- 
dians shall  become  necessary  for  the  purposes  of  the  ordinance, 
which  cannot  be  done  without  interfering  with  the  legislative 
rights  of  a  state,  the  superintendent  within  whose  district  the 
same  shall  happen,  shall  act  in  conjunction  with  the  authority 
of  such  state. 

After  accepting  the  cessions  of  the  soil  and  jurisdiction  of 
the  western  territory,  and  resolving  to  form  a  temporary 
government,  and  create  new,  free,  sovereign,  and  independent 
states,  congress  resolved,  in  March  1785,  to  hold  a  treaty  with 
the  western  Indians.  They  gave  instructions  to  the  commiss- 
ioners in  strict  conformity  with  their  preceding  resolutions, 
both  of  which  were  wholly  incompatible  with  the  national  or 
sovereign  character  of  the  Indians  with  whom  they  were  about 
to  treat.  They  will  be  formed  in  pages  611,  &c.  and  need 
not  be  particularized. 

I  now  proceed  to  the  instructions  which  preceded  the  treaty 
of  Hopewell  with  the  complainants,  the  treaty,  and  the  conse- 
quent proceedings  of  congress.  On  the  15th  March  1785,  com- 
missioners were  appointed  to  treat  with  the  Cherokees  and 
other  Indians,  southward  of  them,  within  the  limits  of  the 
United  States,  or  who  have  been  at  war  with  them,  for  the 
purpose  of  making  peace  with  them,  and  of  receiving  them 
into  the  favour  and  protection  of  the  United  States,  &c. 
They  were  instructed  to  demand  that  all  prisoners,  negroes 
and  other  property  taken  during  the  war  be  given  up;  to  in- 
form the  Indians  of  the  great  occurrences  of  the  last  war;  of 
the  extent  of  country  relinquished  by  the  late  treaty  of  peace 
with  Great  Britain;  to  give  notice  to  the  governors  of  Vir- 
ginia, North  and  South  Carolina  and  Georgia  that  they  may 
attend  if  they  think  proper:  and  were  authorized  to  expend 
four  thousand  dollars  in  making  presents  to  the  Indians;  a 
matter  well  understood  in  making  Indian  treaties,  but  un- 
known at  least  in  our  treaties  with   foreign  nations,    princes 


182  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia. ^ 
or  states,  unless  on  the  Barbary  coast.  A  treaty  was  ac- 
cordingly made  in  November  following,  between  the  com- 
missioners plenipotentiaries  of  the  United  States  of  the  one 
part,  and  the  head  men  and  warriors  of  all  the  Cherokees  of 
the  other.  The  word  nation  is  not  used  in  the  preamble  or 
any  part  of  the  treaty,  so  that  we  are  left  to  infer  the  capacity 
in  which  the  Cherokees  contracted,  whether  as  an  indepen- 
dent nation  or  foreign  state  or  a  tribe  of  Indians,  from  the 
terms  of  the  treaty,  its  stipulations  and  conditions.  "The 
Indians  for  themselves  and  their  respective  tribes  and  towns 
do  acknowledge  all  the  Cherokees  to  be  under  the  protection 
of  the  United  States."  Article  3d.  1  Laws  U.  S.  322. 
"  The  boundary  allotted  to  the  Cherokees  for  their  hunting 
grounds  between  the  said  Indians  and  the  citizens  of  the 
United  States,  within  the  limits  of  the  United  States,  is  and 
shall  be  the  following,"  viz.  (as  defined  in  Article  4th).  "  For 
the  benefit  and  comfort  of  the  Indians,  and  for  the  prevention  of 
injuries  and  aggressions  on  the  part  of  the  citizens  or  Indians, 
the  United  States  in  congress  assembled  shall  have  the  sole 
and  exclusive  right  of  regulating  the  trade  with  the  In- 
dians, and  managing  all  their  affaiz's  in  such  manner  as  they 
shall  think  proper.  Article  9.  "  That  the  Indians  may  have 
full  confidence  in  the  justice  of  the  United  States  respecting 
their  interests,  they  shall  have  the  right  to  send  a  deputy  of 
their  choice  whenever  they  think  fit  to  congress."  Article 
12th. 

This  treaty  is  .  in  the  beginning  called  "Article:"  the 
word  "treaty"  is  only  to  be  found  in  the  concluding  line, 
where  it  is  called  "  this  definitive  treaty."  But  article  or 
treaty,  its  nature  does  not  depend  upon  the  name  given  it. 
It  is  not  negotiated  between  ministers  on  both  sides  repre- 
senting their  nations;  the  stipulations  are  wholly  inconsistent 
with  sovereignty;  the  Indians  acknowledge  their  dependent 
character;  hold  the  lands  they  occupy  as  an  allotment  of 
hunting  grounds;  give  to  congress  the  exclusive  right  of  regu- 
lating their  trade  and  managing  all  their  affairs  as  they  may 
think  proper.  So  it  was  understood  by  congress  as  declared 
by  them  in  their  proclamation  of  1st  September  1788  (1 
Laws  U.  S.  619),  and  so  understood  at  the  adoption  of  the 
constitution. 


JANUARY  TERM  1831.  183 

[The  Cherokee  Nation  vs.  The  Stale  of  Georgia.] 
The  meaning  of  the  words  "  deputy  to  congress"  in 
the  twelfth  article  may  be  as  a  person  having  a  right  to  sit 
in  tJiat  body,  as  at  that  time  it  was  composed  of  delegates  or 
deputies  from  the  states,  not  as  at  present,  representatives  of 
the  people  of  the  states;  or  it  may  be  as  an  agent  or  minister. 
But  if.thafbr.mer  was  the  meaning  of  the  parties,  it  is  conclu- 
sive to  show  that  he  was  not  and  could  not  be  the  deputy  of 
a  foreign  state  wholly  separated  from  the  union.  If  he  sat  in 
congress  as  a  deputy  from  any  state,  it  must  be  one  having  a 
political  connection  with,  and  within  the  jurisdiction  of  the 
confederacy;  if  as  a  diplomatic  agent,  he  could  not  represent  an 
independent  or  sovereign  nation,  for  all  such  have  an  unques- 
tioned right  to  send  such  agents  when  and  where  they  please. 
The  securing  the  right  by  an  express  stipulation  of  the  treaty  j 
the  declared  objects  in  conferring  the  right  especially  when 
connected  with  the  ninth  article;  show  beyond  a  doubt  it  was 
not  to  represent  a  foreign  state  or  nation  or  one  to  whom  the 
least  vestige  of  independence  or  sovereignty  as  to  the  United 
States  appertained.  There  can  be  no  dependence  so  anti- 
national,  or  so  utterly  subversive  of  national  existence  as 
transferring  to  a  foreign  government  the  regulation  of  its 
trade,  and  the  management  of  all  their  affairs  at  their  pleasure. 
The  nation  or  state,  tribe  or  village,  head  men  or  warriors 
of  the  Cherokees,  call  thein  by  what  name  we  please,  call  the 
articles  they  have  signed  a  definitive  treaty  or  an  indenture  of 
servitude;  they  are  not  by  its  force  or  virtue  a  foreign  state 
capable  of  calling  into  legitimate  action  the  judicial  power  of 
this  union,  by  the  exercise  of  the  original  jurisdiction  of  this 
court  against  a  sovereign  state,a  component  part  of  this  nation. 
Unless  the  constitution  has  imparted  to  the  Cherokees  a  na- 
tional character  never  recognized  under  the  confederation; 
and  which  if  they  ever  enjoyed  was  surrendered  by  the  treaty 
of  Hopewell;  they  cannot  be  deemed  in  this  court  plaintiffs  in 
such  a  case  as  this. 

In  considering  the  bearing  of  the  constitution  on  their 
rights,  it  nuist  be  borne  in  mind,  that  a  majority  of  the  states 
represented  in  tlie  convention  had  ceded  to  the  United  States 
the  soil  and  jurisdiction  of  their  western  lands,  or  claimed  it 
to  be  remaining  in  themselves;  that  congress  asserted  as  to  the 
ceded,  and  the  states  as  to  the  unceded  territory,  their  right 
to  the  soil  absolutely  and  the  dominion  in  full   sovereignty. 


1^4  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  Stale  of  Georgia.] 

within  their  respective  limits,  subject  only  to  Indian  occu- 
pancy, not  as  foreign  states  or  nations,  but  as  dependent  on 
and  appendant  to  the  state  governments:  that  before  the  con- 
vention acted,  congress  had  erected  a  government  in  the  north 
western  territory  containing  numerous  and  powerful  nations 
fi^jf^f/rg^i^OT  tribes  of  Indians,  whose  jurisdiction  was  oowtiaucd  and 
whose  sovereignty  was  overturned,  if  it  ever  existed,  except 
by  permission  of  the  states  or  congress,  by  ordaining  that  the 
territorial  laws  should  extend  over  the  whole  district;  and 
directing  divisions  for  the  execution  of  civil  and  criminal 
process  in  every  part;  that  the  Cherokees  were  then  depend- 
ants, having  given  up  all  their  affairs  to  the  regulation  and 
management  of  congress,  and  that  all  the  regulations  of  congress, 
over  Indian  affairs  were  then  in  force  over  an  immense  territory, 
under  a  solemn  pledge  to  the  inhabitants,  that  whenever  their 
population  and  circumstances  w"ould  admit  they  should  form  con- 
stitutions and  become  free,  sovereign  and  independent  states 
on  equal  footing  with  the  old  component  members  of  the  con- 
federation; that  by  the  existing  regulations  and  treaties,  the 
Indian  tenure  to  their  lands  was  their  allotment  as  hunting 
grounds  without  the  power  of  alienation,  that  the  right  of 
occupancy  was  not  individual,  that  the  Indians  were  forbidden 
all  trade  or  intercourse  with  any  person  not  licensed  or  at  a 
post  not  designated  by  regulation,  that  Indian  affairs  formed 
no  part  of  the  foreign  concerns  of  the  government,  and  that 
though  they  were  permitted  to  regulate  their  internal  affairs 
in  their  own  way,  it  was  not  by  any  inherent  right  acknow- 
ledged by  congress  or  reserved  by  treaty,  but  because  congress 
did  not  think  proper  to  exercise  the  sole  and  exclusive 
right,  declared  and  asserted  in  all  their  regulations  from  1775 
to  17SS,  in  the  articles  of  confederation,  in  the  ordinance  of 
1787  and  the  proclamation  of  1788;  which  the  plaintiffs  so- 
lemnly recognized  and  expressly  granted  by  the  treaty  of 
Hopewell  in  1785,  as  conferred  on  congress  to  be  exercised  as 
they  should  think  proper. 

To  correctly  understand  the  constitution,  then,  we  must 
read  it  with  reference  to  this  well  known  existing  state  of  our 
relations  with  the  Indians;  the  United  States  asserting  the  right 
of  soil,  sovereignty,  and  jurisdiction,  in  full  dominion;  the 
Indians  occupant,  of  allotted  hunting  grounds. 

We  can  thus  expound  the  constitution  without  a  reference 


JANUARY  TERM  1831.  185 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
to  the  definitions  of  a  state  or  nation  by  any  foreign  writer, 
hypothetical  reasoning,  or  the  dissertations  of  the  Federalist. 
This  would  be  to  substitute  individual  authority  in  place  of  the 
declared  will  of  the  sovereign  power  of  the  union,  in  a  writ- 
ten fundamental  law.  Whether  it  is  the  emanation  from  the 
people  or  the  states,  is  a  moot  question,  having  no  bearing  en 
the  supremacy  of  that  supreme  law  which  from  a  proper 
source  has  rightfully  been  imposed  on  us  by  sovereign  power. 
Where  its  terms  are  plain,  I  should,  as  a  dissenting  judge, 
deem  it  judicial  sacrilege  to  put  my  hands  on  any  of  its  pro- 
visions, and  arrange  or  construe  them  according  to  any  fancied 
use,  object,  purpose,  or  motive,  which,  by  an  ingenious 
train  of  reasoning,  I  might  bring  my  mind  to  believe  was 
the  reason  for  its  adoption  by  the  sovereign  power,  from 
whose  hands  it  comes  to  me  as  the  rule  and  guide  to  my  faith, 
my  reason,  and  judicial  oath.  In  taking  out,  putting  in,  or 
varying  the  plain  meaning  of  a  word  or  expression,  to  meet 
the  results  of  my  poor  judgment,  as  to  the  meaning  and  inten- 
tion of  the  great  charter,  which  alone  imparts  to  me  my  power 
to  act  as  a  judge  of  its  supreme  injunctions,  I  should  feel  my- 
self acting  upon  it  by  judicial  amendments,  and  not  as  one  of 
its  executors.  I  will  not  add  unto  these  things;  I  will  not 
take  away  from  the  words  of  this  book  of  prophecy;  I  will 
not  impair  the  force  or  obligation  of  its  enactments,  plain  and 
unqualified  in  its  terms,  by  resorting  to  the  authority  of  names; 
the  decisions  of  foreign  courts;  or  a  reference  to  books  or 
writers.  The  plain  ordinances  are  a  safe  guide  to  my  judg- 
ment. When  they  admit  of  doubt,  I  will  connect  the  words 
with  the  practice,  usages,  and  settled  principles  of  this  govern- 
ment, as  administered  by  its  fathers  before  the  adoption  of  the 
constitution:  and  refer  to  the  received  opinion  and  fixed  un- 
derstanding of  the  high  parties  who  adopted  it;  the  usage  and 
practice  of  the  new  government  acting  under  its  authority; 
and  the  solemn  decisions  of  this  court,  acting  under  its  high 
powers  and  responsibility:  nothing  fearing  that  in  so  doing,  I 
can  discover  some  sound  and  safe  maxims  of  American  policy 
and  jurisprudence,  which  will  always  afford  me  light  enough 
to  decide  on  the  constitutional  powers  of  the  federal  and  state 
governments,  and  all  tribunals  acting  under  their  authority. 
They  will  at  least  enable  me  to  judge  of  the  true  meaning  and 
Y 


186  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
spirit  of  plain  words,  put  into  the  forms  of  constitutional  pro- 
visions, which  this  court  in   the  great   case  of  Sturges  and 
Crowninshield  say,  "  is  to  be  collected  chiefly  from  its  words. 
It  would  be  dangerous  in  the  extreme  to  infer  from  extrinsic 
circumstances  that  a  case  for  which  the  words  of  an  instru- 
ment expressly  provide,  shall  be  exempted  from  its  operation. 
Where  words  conflict  with  each  other,  where  the   different 
clauses  of  an  instrument  bear    upon    each    other,  and    would 
be    inconsistent   unless    the  natural  and  common    import  of 
words  be  varied,  construction  becomes  necessary,  and  a  de- 
parture from  the  obvious  meaning  of   words  is  justifiable." 
But  the  absurdity  and  injustice  of  applying  the  provision  to 
the  case  must  be  so  monstrous,  that  all  mankind  would  without 
hesitation  unite  in  rejecting  the  application.    4  Wheat.  202,  3. 
In  another  great  case,  Cohens  vs^  Virginia,  this  court  say, 
"the  jurisdiction  of  this  court  then,  being  extended  by  the 
letter  of  the  constitution  to  all  cases  arising  under  it  or  under 
the  laws  of  the  United  States,  it  follows  that  those,  who  would 
withdraw  any  case  of  this  description  from  that  jurisdiction, 
must  sustain  the  exemption  they  claim  on  the  spirit  and  true 
meaning  of  the   constitution,  which  spirit  and  true  meaning 
must  be  so  apparent  as  to  overrule  the  words  which  its  framers 
have  employed."     6  Wheat.  379,  SO. 

The  principle  of  these  cases  is  my  guide  in  this.  Sitting 
here,  I  shall  always  bow  to  such  authority;  and  require  no 
admonition  to  be  influenced  by  no  other,  in  a  case  where  1  am 
called  on  to  take  a  part  in  the  exercise  of  the  judicial  power 
over  a  sovereign  state. 

Guided  by  these  principles,  I  come  to  consider  the  third 
clause  of  the  second  section  of  the  first  article  of  the  consti- 
tution; which  provides  for  the  apportionment  of  representa- 
tives, and  direct  taxes  "  among  the  several  states  which  may 
be  included  within  this  union,  according  to  their  respective 
numbers,  excluding  Indians  ?iot  taxed."  This  clause  em- 
braces not  only  the  old  but  the  new  states  to  be  formed  out  of 
the  territory  of  the  United  States,  pursuant  to  the  resolutions 
and  ordinances  of  the  old  congress,  and  the  conditions  of  the 
cession  from  the  states,  or  which  might  arise  by  the  division 
of  the  old.  If  the  clause  excluding  Indians  not  taxed  had  not 
been  inserted,  or  should  be  stricken  out,  the  whole  free  Indian 


JANUARY  TERM  1831.  187 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
population  of  all  the  states  would  be  included  in  the  federal 
numbers,  coextensively  with  the  boundaries  of  all  the  states, 
included  in  this  union.  The  insertion  of  this  clause  conveys 
a  clear  definite  declaration  that  there  were  no  independent  sove- 
reign nations  or  states,  foreign  or  domestic,  within  their  boun- 
daries, which  should  exclude  them  from  the  federal  enumera- 
tion, or  any  bodies  or  comm.unities  within  the  states,  excluded 
from  the  action  of  the  federal  constitution  unless  by  the  use  of 
express  words  of  exclusion. 

The  delegates  who  represented  the  states  in  the  convention 
well  knew  the  existing  relations  between  the  United  States 
and  the  Indians,  and  put  the  constitution  in  a  shape  for  adop- 
tion calculated  to  meet  them;  and  the  words  used  in  this 
clause  exclude  the  existence  of  the  plaintiffs  as  a  sovereign  or 
foreign  state  or  nation,  within  the  meaning  of  this  section,  too 
plainly  to  require  illustration  or  argument. 

The  third  clause  of  the  eighth  article  shows  most  distinctly 
the  sense  of  the  convention  in  authorising  congress  to  regulate 
commerce  with  the  Indian  tribes.  The  character  of  the  In- 
dian communities  had  been  settled  by  many  years  of  uniform 
usage  under  the  old  government:  characterized  by  the  name 
of  nations,  towns,  villages,  tribes,  head  men  and  warriors,  as 
the  writers  of  resolutions  or  treaties  might  fancy;  governed 
by  no  settled  rule,  and  applying  the  word  nation  to  the  Cataw- 
bas  as  well  as  the  Cherokees.  The  framers  of  the  constitution 
have  thought  proper  to  define  their  meaning  to  be,  that  they 
were  not  foreign  nations  nor  states  of  the  union,  but  Indian 
tribes;  thus  declaring  the  sense  in  which  they  should  be  con- 
sidered under  the  constitution,  which  refers  to  them  as  tribes 
only,  in  this  clause.  I  cannot  strike  these  words  from  the 
book;  or  construe  Indian  tribes  in  this  part  of  the  constitution 
to  mean  a  sovereign  state  under  the  first  clause  of  the  second 
section  of  the  third  article.  It  would  be  taking  very  great 
liberty  in  the  exposition  of  a  fundamental  law,  to  bring  the 
Indians  under  the  action  of  the  legislative  power  as  tribes, 
and  of  the  judicial,  as  foreign  states.  The  power  con- 
ferred to  regulate  commerce  with  the  Indian  tribes,  is  the 
same  given  to  the  old  congress  by  the  ninth  article  of  the  old 
confederation,  "to  regulate  trade  with  the  Indians."  The 
raising  the  word  "trade"  to  the  dignity  of  commerce,  regu- 


188    •  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
lating   it  with   Indians  or  Indian   tribes,  is  only  a  change  of 
words.     Mere  phraseology  cannot  make  Indians  nations,  or 
Indian  tribes  foreign  states. 

The  second  clause  of  the  third  section  of  the  fourth  article 
of  the  constitution  is  equally  convincing.  "  The  congress  shall 
have  power  to  dispose  of,  and  make  all  needful  regulations 
and  rules  respecting  the  territory  of  the  United  States."  What 
that  territory  was,  the  rights  of  soil,  jurisdiction,  and  sove- 
reignty claimed  and  exercised  by  the  states  and  the  old  con- 
gress, has  been  already  seen.  It  extended  to  the  formation 
of  a  government  whose  laws  and  process  were  in  force  within 
its  whole  extent,  without  a  saving  of  Indian  jurisdiction.  It 
is  the  same  power  which  was  delegated  to  the  old  congress, 
and,  according  to  the  judicial  interpretation  given  by  this 
court  in  Gibbons  vs.  Ogden,  9  Wheaton,  209,  the  word  "  to 
regulate"  implied  in  its  nature  full  power  over  the  thing  to  be 
regulated;  it  excludes,  necessarily,  the  action  of  all  others  that 
would  perform  the  same  operation  on  the  same  thing.  Apply- 
ing this  construction  to  commerce  and  territory,  leaves  the 
jurisdiction  and  sovereignty  of  the  Indian  tribes  wholly  out  of 
the  question.  The  power  given  in  this  clause  is  of  the  most 
plenary  kind.  Rules  and  regulations  respecting  the  territory 
of  the  United  States;  they  necessarily  include  complete  juris- 
diction. It  was  necessary  to  confer  it  without  limitation,  to 
enable  the  new  government  to  redeem  the  pledge  given  by 
the  old  in  relation  to  the  formation  and  powers  of  the  new 
states.  The  saving  of  "  the  claims"  of  "  any  particular  state" 
is  almost  a  copy  of  a  similar  provision,  part  of  the  ninth  article 
of  the  old  confederation;  thus  delivering  over  to  the  new  con- 
gress the  power  to  regulate  commerce  with  the  Indian  tribes, 
and  regulate  the  territory  they  occupied,  as  the  old  had  done 
from  the  beginning  of  the  revolution. 

The  only  remaining  clause  of  the  constitution  to  be  consid- 
ered is  the  second  clause  in  the  sixth  article.  ^'  All  treaties 
made,  or  to  be  made,  shall  be  the  supreme  law  of  the  land." 

In  Chirac  vs.  Chirac,  this  court  declared  that  it  was  unne- 
cessary to  inquire  into  the  eflfect  of  the  treaty  with  France  in 
1778  under  the  old  confederation,  because  the  confederation 
had  yielded  to  our  present  constitution,  and  this  treaty  had 
been  the  supreme  law  of  the  land.     2  Wheaton,  271.     I  con- 


JANUARY  TERM  1831.  189 

[The  Cherokee  Nation  vs.  Tof.  State  of  Georgia.] 
sider  the  same  rule  as  applicable  to  Indian  treaties,  whether 
considered  as  national  compacts  between  sovereign  powers,  or 
as  articles,  agreements,  contracts  or  stipulations  or^  the  part  of 
this  government,  binding  and  pledging  the  faith  of  the  nation 
to  the  faithful  observance  of  its  conditions.  They  secure  to 
the  Indians  the  enjoyment  of  the  rights  they  stipulate  to  give 
or  secure,  to  their  full  extent,  and  in  the  plenitude  of  good 
faith;  but  the  treaties  must  be  considered  as  the  rules  of  reci- 
procal obligations.  The  Indians  must  have  their  rights;  but 
must  claim  them  in  that  capacity  in  which  they  received  the 
grant  or  guarantee.  They  contracted  by  putting  themselves 
under  the  protection  of  the  United  States,  accepted  of  an  allot- 
ment of  hunting  grounds,  surrendered  and  delegated  to  con- 
gress the  exclusive  regulation  of  their  trade  and  the  manage- 
ment of  all  their  own  affairs,  taking  no  assurance  of  their  con- 
tinued sovereignty,  if  they  had  any  before,  but  relying  on  the 
assurance  of  the  United  States  that  they  might  have  full  confi- 
dence in  their  justice  respecting  their  interests;  stipulating  only 
for  the  right  of  sending  a  deputy  of  their  own  choice  to  con- 
gress. If,  then,  the  Indians  claim  admission  to  this  court  un- 
der the  treaty  of  Hopewell,  they  cannot  be  admitted  as  foreign 
states,  and  can  be  received  in  no  other  capacity. 

The  legislation  of  congress  under  the  constitution  in  rela- 
tion to  the  Indians  has  been  in  the  same  spirit  and  guided 
by  the  same  principles,  which  prevailed  in  the  old  congress 
and  under  the  old  confederation.  In  order  to  give  full  effect 
to  the  ordinance  of  1787,  in  the  north  west  territory,  it  was 
adapted  to  the  present  constitution  of  the  United  States  in  1789, 

2  Laws  U.  S.  33;  applied  as  the  rule  for  its  government  to 
the  territory  south  of  the  Ohio  in  1790,  except  the  sixth  ar- 
ticle, 2  Laws  U.  S.  104;  to  the  Mississippi  territory  in  1798, 

3  Laws  U.  S.  39,  40  and  with  no  exception  to  Indiana  in 
1800,  3  Laws  U.  S.  367;  to  Michigan  in  1805,  3  Laws  U. 
S.  632;  to  Illinois  in  1809,  4  Laws  U.  S.  198. 

In  1802  congress  passed  the  act  regulating  trade  and  inter- 
course with  the  Indian  tribes,  in  which  they  assert  all  the 
rights  exercised  over  them  under  the  old  confederation,  and 
do  not  alter  in  any  degree  their  political  relations,  3  Laws 
U.  S.  460,  et  seq.  In  the  same  year  Georgia  ceded  her  lands 
west  of  her  present  boundary  to  the  United  States;  and  by  the 


190  SUPREME  COURT. 

[The  Cherokee  Natioii  vs.  The  State  of  Georgia.] 
second  article  of  the  convention  the  United  States  ceded  to 
Georgia  whatever  claim,  right  or  title  they  may  have  to  the 
jurisdiction  or  soil  of  any  lands  south  of  Tennessee,  North  or 
South  Carolina  and  east  of  the  line  of  the  cession  by  Georgia. 
So  that  Georgia  now  has  all  the  rights  attached  to  her  by  her 
sovereignty  within  her  limits,  and  which  are  saved  to  her  by 
the  second  section  of  the  fourth  article  of  the  constitution,  and 
all  the  United  States  could  cede  either  by  their  power  over 
the  territory  or  their  treaties  with  the  Cherokees. 

The  treaty  with  the  Cherokees,  made  at  Holston  in  1791, 
contains  only  one  article  which  has  a  bearing  on  the  political 
relations  of  the  contracting  parties.  In  the  second  article  the 
Cherokees  stipulate  "  that  the  said  Cherokee  nation  will  not 
hold  any  treaty  with  any  foreign  power,  individual  state, 
or  with  individuals  qf  auT/  state."  1  Laws  U.  S.  326. 
This  affords  an  instructive  definition  of  the  words  nation  and 
treaty.  At  the  treaty  of  Hopewell  the  Cherokees,  though 
subdued  and  suing  for  peace,  before  divesting  themselves  of 
any  of  the  rights  or  attributes  of  sovereignty  which  this  gov- 
ernment ever  recognized  them  as  possessing  by  the  consum- 
mation of  the  treaty,  contracted  in  the  name  of  the  head  men 
and  warriors  of  all  the  Cherokees;  but  at  Holston  in  1791,  in 
abandoning  their  last  remnant  of  political  right,  contracted  as 
the  Cherokee  nation,  thus  ascending  in  title  as  they  descended 
in  power,  and  applying  the  word  treaty  to  a  contract  with  an 
individual:  this  consideration  will  divest  words  of  their  magic. 

In  thus  testing  the  rights  of  the  complainants  as  to  their 
national  character  by  the  old  confederation,  resolutions  and 
ordinances  of  the  old  congress,  the  provisions  of  the  consti- 
tution, treaties  held  under  the  authority  of  both,  and  the  sub- 
sequent legislation  thereon,  I  have  followed  the  rule  laid  down 
for  my  guide  by  this  court,  in  Foster  t^-s.  Elam,  2  Peters,  307, 
in  doing  it  "  according  to  the  principles  established  by  the 
political  department  of  the  government.  '•'  If  the  course  of 
the  nation  has  been  a  plain  one,  its  courts  would  hesitate  to 
pronounce  it  erroneous.  However  individual  judges  may 
construe  them  (treaties),  it  is  the  province  of  the  court  to 
conform  its  decisions  to  the  will  of  the  legislature,  if  that  will 
has  been  clearly  expressed."  That  the  existence  of  foreign 
states  cannot  be  known  to  this  court  judicially  except  by  some 


JANUARY  TERM  1S31.  191 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
act  or  recognition  of  the  other  departments  of  this  govern- 
ment is,  I  think,  fully  established  in  the  case   of  Palmer,  3 
Wheaton,  634,5;  the  Pastora,  4  Wheaton,  63;  and  the  Anna, 
6   Wheaton,   193. 

I  shall  resort  to  the  same  high  authority  as  the  basis  of  my 
opinion  on  the  powers  of  the  state  governments.  "  By  the 
revolution  the  duties  as  well  as  the  powers  of  government 
devolved  on  the  people  of  [Georgia]  New  Hampshire.  It  is 
admitted  that  among  the  latter  were  comprehended  the  trans- 
cendent powers  of  parliament,  as  well  as  those  of  the  execu- 
tive department."  Dartmouth  College  vs.  Woodward,  4 
Wheat.  451,  4  Wheat,  192;  Green  vs.  Biddle,  8  Wheat. 
98;0gdent>*.  Saunders,  12  Wheat.  254,  &c.  ''The  same 
principle  applies  though  with  no  greater  force  to  the  dif- 
ferent states  of  America;  for  though  they  form  a  confederated 
government,  yet  the  several  states  retain  their  individual  so- 
vereignties, and  with  respect  to  their  municipal  regulations 
are  to  each  other  foreign. "  Buckner  ?;5.  Findley,  2  Peters, 
591.  The  powers  of  government,  which  thus  devolved  on 
Georgia  by  the  revolution  over  "her  whole  territory,  are  un- 
impaired by  any  surrender  of  her  territorial  jurisdiction,  by 
the  old  confederation  or  the  new  constitution,  as  there  was  in 
both  an  express  saving,  as  well  as  by  the  tenth  article  of 
amendments. 

But  if  any  passed  to  the  United  States  by  either,  they  were 
retroceded  by  the  convention  of  1802.  Her  jurisdiction  over 
the  territory  in  question  is  as  supreme  as  that  of  congress 
over  what  the  nation  has  acquired  by  cession  from  the  states 
or  treaties  with  foreign  powers,  combining  the  rights  of  the 
state  and  general  government.  Within  her  boundaries  there 
can  be  no  other  nation,  community,  or  sovereign  power, 
which  this  department  can  judicially  recognize  as  a  foreign 
state,  capable  of  demanding  or  claiming  our  interposition,  so  as 
to  enable  them  to  exercise  a  jurisdiction  incompatible  with  a 
sovereignty  in  Georgia,  which  has  been  recognized  by  the 
constitution,  and  every  department  of  this  government  acting 
under  its  authority.  Foreign  states  cannot  be  created  by  judi- 
cial construction;  Indian  sovereignty  cannot  be  roused  from  its 
long  slumber,  and  awakened  to  action  by  our  fiat.  I  find  no 
acknowledgement  of  it  by  the  legislative  or  executive  power. 


192  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
Till  they  have  done  so,  I  can  stretch  forth  no  arm  for  their 
relief  without  violating  the  constitution.  1  say  this  with 
great  deference  to  those  from  whom  I  dissent;  but  my  judg- 
ment tells  me,  I  have  no  power  to  act,  and  imperious  duty 
compels  me  to  stop  at  the  portal,  unless  I  can  find  some  au- 
thority in  the  judgments  of  this  court,  to  which  I  may  surren- 
der my  own. 

Indians  have  rights  of  occupancy  to  their  lands  as  sacred  as 
the  fee-sim.ple,  absolute  title  of  the  whites;  but  they  are  only 
rights  of  occupancy,  incapable  of  alienation,  or  being  held  by 
any  other  than  common  right  without  permission  from  the 
government.  8  Wheaton,  592.  In  Fletcher  vs.  Peck,  this 
court  decided  that  the  Indian  occupancy  was  not  absolutely 
repugnant  to  a  seisin  in  fee  in  Georgia,  that  she  had  good 
right  to  grant  land  so  occupied,  that  it  was  within  the  state, 
and  could  be  held  by  purchasers  under  a  law  subject  only  to 
extinguishment  of  the  Indian  title.  6  Cranch,  88,  142.  9 
Cranch,  11.  In  the  case  of  Johnson  vs.  Mcintosh,  8  Whea- 
ton, 543,  571,  the  nature  of  the  Indian  title  to  land  on 
this  continent,  throughout  its  whole  extent,  was  most  ably 
and  elaborately  considered;  leading  to  conclusions  satis- 
factory to  every  jurist,  clearly  establishing  that  from  the 
time  of  discovery  under  the  royal  government,  the  colo- 
nies, the  states,  the  confederacy  and  this  union,  their  tenure 
was  the  same  occupancy,  their  rights  occupancy  and  nothing 
more;  that  the  ultimate  absolute  fee,  jurisdiction  and  so- 
vereignty was  in  the  government,  subject  only  to  such  rights; 
that  grants  vested  soil  and  dominion,  and  the  powers  of  go- 
vernment, whether  the  land  granted  was  vacant  or  occupied 
by  Indians. 

By  the  treaty  of  peaee  the  powers  of  government  and  the 
rights  of  soil  which  had  previously  been  in  Great  Britain, 
passed  definitively  to  these  states.  8  Wheat.  584.  They  as- 
serted these  rights,  and  ceded  soil  and  jurisdiction  to  the 
United  States.  The  Indians  were  considered  as  tribes  of  fierce 
savages;  a  people  with  whom  it  was  impossible  to  mix, 
and  who  could  not  be  governed  as  a  distinct  society. 
They  are  not  named  or  referred  to  in  any  part  of  the  opinion 
of  the  court  as  nations  or  states,  and  no  where  declared  to 
have  any  national  capacity  or  attributes  of  sovereignty  in  their 


JANUARY  TERM  1831.  193 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
relations  to  the  general  or  state  governments.  The  principles 
established  in  this  case  have  been  supposed  to  apply  to  the 
rights  which  the  nations  of  Europe  claimed  to  acquire  by  dis- 
covery, as  only  relative  between  themselves,  and  that  they 
did  not  assume  thereby  any  rights  of  soil  or  jurisdiction  over 
the  territory  in  the  actual  occupation  of  the  Indians,  But 
the  language  of  the  court  is  too  explicit  to  be  misunderstood. 
"  This  principle  was,  that  discovery  gave  title  to  the  govern- 
ment by  whose  subjects  or  by  whose  authority  it  was  made, 
against  all  other  European  governments,  which  title  might 
be  consummated  by  possession."  Those  relations  which 
wei*e  to  subsist  between  the  discoverer  and  the  natives  were 
to  be  regulated  by  themselves.  The  rights  thus  acquired  being 
exclusive,    no   other   power   could    interpose   between  them. 

While  the  different  nations  of  Europe  respected  the  rights 
of  the  natives  as  occupants,  they  asserted  the  ultimate  domi- 
nion to  be  in  themselves;  and  claimed  and  exercised  as  a  con- 
sequence of  this  ultimate  dominion,  a  power  to  grant  the  soil 
while  yet  in  the  possession  of  the  natives.  These  grants  have 
been  understood  by  all  to  convey  a  title  to  the  grantees,  sub- 
ject only  to  the  Indian  rights  of  occupancy.  The  history  of 
America  from  its  discovery  to  the  present  day  proves,  we  think, 
the  universal  recognition  of  these  principles.     8  Wheat.  574. 

I  feel  it  my  duty  to  apply  them  to  this  case.  They  are  in 
perfect  accordance  with  those  on  which  the  governments  of  the 
united  and  individual  states  have  acted  in  all  their  changes: 
they  were  asserted  and  maintained  by  the  colonies,  before 
they  assumed  independence.  While  dependent  themselves  on 
the  crown,  they  exercised  all  the  rights  of  dominion  and  sove- 
reignty over  the  territory  occupied  by  the  Indians;  and  this 
is  the  first  assertion  by  them  of  rights  as  a  foreign  state  within 
the  limits  of  a  state.  If  their  jurisdiction  within  their  boun- 
daries has  been  unquestioned  until  this  controversy;  if  rights 
have  been  exercised  which  are  directly  repugnant  to  those 
now  claimed;  the  judicial  power  cannot  divest  the  states  of 
rights  of  sovereignty,  and  transfer  them  to  the  Indians,  by  de- 
creeing them  to  be  a  nation,  or  foreign  state,  pre-existing  and 
with  rightful  jurisdiction  and  sovereignty  over  the  territory 
they  occupy.  This  would  reverse  every  principle  on  which 
our  government  have  acted  for  fifty-five  years;  and  force,  by 
Z 


194  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
mere  judicial  power,  upon  the  other  departments  of  this  gov- 
ernment and  the  states  of  this  union,  the  recognition  of  the 
existence  of  nations  and  slates  within  the  limits  of  both,  poss- 
essing dominion  and  jurisdiction  paramount  to  the  federal 
and  state  constitutions.  It  will  be  a  declaration,  in  my  de- 
liberate judgment,  that  the  sovereign  power  of  the  people  of 
the  United  States  and  union  must  hereafter  remain  inca- 
pable of  action  over  territory  to  which  their  rights  in  full 
dominion  have  been  asserted  with  the  most  rigorous  au- 
thority, and  bow  to  a  jurisdiction  hitherto  unknown,  unac- 
knowledged by  any  department  of  the  government;  denied- 
by  all  through  all  time;  unclaimed  till  now;  and  now  declared 
to  have  been  called  into  exercise,  not  by  any  change  in  our 
constitution,  the  laws  of  the  union  or  the  states;  but  pre-exist- 
ent  and  paramount  over  the  supreme  law  of  the  land. 

I  disclaim  the  assumption  of,  a  judicial  power  so  awfully  re- 
sponsible. No  assurance  or  certainty  of  support  in  public 
opinion  can  induce  me  to  disregard  a  law  so  supreme;  so 
plain  to  my  judgment  and  reason.  Those,  who  have  brought 
public  opinion  to  bear  on  this  subject,  act  under  a  mere  moral 
responsibility;  under  no  oath  which  binds  their  movements  to 
the  straight  and  narrow  line  drawn  by  the  constitution.  Poli- 
tics or  philanthropy  may  impel  them  to  pass  it,  but  when  their 
objects  can  be  effectuated  only  by  this  court,  they  must  not 
expect  its  members  to  diverge  from  it,  when  they  cannot  con- 
scientiously take  the  first  step  without  breaking  all  the  high 
obligations  under  which  they  administer  the  judicial  power  of 
the  constitution.  The  account  of  my  executorship  cannot  be 
settled  before  the  court  of  public  opinion,  or  any  human  tri- 
bunal. None  can  release  the  balance  which  will  accrue  by 
the  violation  of  my  solemn  conviction  of  duty. 

'■  Mr  Justice  Thompson,  dissenting. — Entertaining  different 
views  of  the  questions  now  before  us  in  this  case,  and  having 
arrived  at  a  conclusion  different  from  that  of  a  majority  of 
the  court,  and  considering  the  importance  of  the  case  and  the 
constitutional  principle  involved  in  it;  I  shall  proceed,  with  all 
due  respect  for  the  opinion  of  others,  to  assign  the  reasons 
upon  which  my  own  has  been  formed. 

In  the  opinion  pronounced  by  the  court^  the  merits  of  the 


JANUARY  TERM  1831.  195 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

controversy  between  the  state  of  Georgia  and  the  Cherokee 
Indians  have  not  been  taken  into  consideration.  The  denial 
of  the  application  for  an  injvinction  has  been  placed  solely  on 
the  ground  of  want  of  jurisdiction  in  this  court  to  grant 
the  relief  prayed  for.  It  became,  therefore,  unnecessary  to 
inquire  into  the  merits  of  the  case.  But  thinking  as  I  do  that 
the  court  has  jurisdiction  of  the  case,  and  may  grant  relief,  at 
least  in  part;  it  may  become  necessary  for  me,  in  the  course  of 
my  opinion,  to  glance  at  the  merits  of  the  controversy;  which  I 
shall,  however,  do  very  briefly,  as  it  is  important  so  far  as 
relates  to  the  present  application. 

Before  entering  upon  the  examination  of  the  particular 
points  which  have  been  made  and  argued,  and  for  the  pur- 
pose of  guarding  against  any  erroneous  conclusions,  it  is  proper 
that  I  should  state,  that  I  do  not  claim  for  this  court,  the 
exercise  of  jurisdiction  upon  any  matter  properly  falling  un- 
der the  denomination  of  political  power.  Relief  to  the  full 
extent  prayed'  by  the  bill  may  be  beyond  the  reach  of  this 
court.  Much  of  the  matter  therein  contained,  by  way  of 
complaint,  would  seem  to  depend  for  relief  upon  the  exer- 
cise of  political  power;'  and  as  such,  appropriately  devolving 
upon  the  executive,  and  not  the  judicial  department  of  the 
government.  This  court  can  grant  relief  so  far  only  as  the 
rights  of  person  or  property  are  drawn  in  question,  and  have 
been  infringed. 

It  would  very  ill  become  the  judicial  station  which  I  hold,  to 
indulge  in  any  remarks  upon  the  hardship  of  the  case,  or  the 
great  injustice  that  would  seem  to  have  been  done  to  the  com- 
plainants, according  to  the  statement  in  the  bill,  and  which  for 
the  purpose  of  the  present  motion  I  must  assume  to  be  true.  If 
they  are  entitled  to  other  than  judicial  relief,  it  cannot  be  ad- 
mitted that  in  a  government  like  ours,  redress  is  not  to  be  had 
in  some  of  its  departments;  and  the  responsibility  for  its  denial 
must  rest  upon  those  who  have  the  power  to  grant  it.  But 
believing  as  I  do,  that  relief  to  some  extent  falls  properly 
under  judicial  cognizance,  I  shall  proceed  to  the  examination 
of  the  case  under  the  following  heads. 

1.  Is  the  Cherokee    nation  of  Indians   a   competent  party 
to  sue  in  this  court? 


196  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

2.  Is  a  suflScient  case  made  out  in  the  bill,  to  warrant  this 
court  in  granting  any  relief? 

3.  Is  an  injunction  the  fit  and  appropriate  relief? 

1.  By  the  constitution  of  the  United  States  it  is  declared 
(Art.  3,  §  2),  that  the  judicial  power  shall  extend  to  all  cases 
in  law  and  equity,  arising  under  this  constitution,  the  laws  of 
the  United  States,  and  treaties  made  or  which  shall  be  made 
under  their  authority;  &c.  to  controversies  between  two  or 
more  states,  &c.  and  between  a  state  or  the  citizens  thereof; 
and  foreign  states,  citizens  or  subjects. 

The  controversy  in  the  present  case  is  alleged  to  be  between 
a  foreign  state,  and  one  of  the  states  of  the  union;  and  does 
not,  therefore,  come  within  the  eleventh  amendment  of  the 
constitution,  which  declares  that  the  judicial  power  of  the 
United  States,  shall  not  be  construed  to  extend  to  any  suit  in 
law  or  equity  commenced  or  prosecuted  against  one  of  the 
United  States  by  citizens  of  another  state,  or  by  citizens  or 
subjects  of  any  foreign  state.  This  amendment  does  not, 
therefore,  extend  to  suits  prosecuted  against  one  of  the  United 
States  by  a  foreign  state.  The  const'tution  further  provides, 
that  in  all  cases  where  a  state  shall  be  a  party,  the  supreme 
court  shall  have  original  jurisdiction.  Under  these  provi- 
sions in  the  constitution,  the  complainants  have  filed  their  bill 
in  this  court,  in  the  character  of  a  foreign  state,  against  the 
state  of-  Georgia;  praying  an  injunction  to  restrain  that  state 
from  committing  various  alleged  violations  of  the  property  pf 
the  nation,  claimed  under  the  laws  of  the  United  States,  and 
treaties  made  with  the  Cherokee  nation. 

That  a  state  of  this  union  may  be  sued  by  a  foreign  state, 
when  a  proper  case  exists  and  is  presented,  is  too  plainly  and 
expressly  declared  in  the  constitution  to  admit  of  doubt;  and 
the  first  inquiry  is,  whether  the  Cherokee  nation  is  a  foreign 
state  within  the  sense  and  meaning  of  the  constitution. 

The  terms  state  and  nation  are  used  in  the  law  of  nations, 
as  well  as  in  common  parlance,  as  importing  the  same  thing; 
and  imply  a  body  of  men,  united  together,  to  procure  their 
mutual  safety  and  advantage  by  means  of  their  union.  Such 
a  society  has  its  aflfairs  and  interests  to  manage;  it  deliberates, 
and  takes  resolutions  in  common,  and  thus  becomes  a  moral 


JANUARY  TERM  1831.  197 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
person,  having  an  understanding  and  a  will  peculiar  to  itself, 
and  is  susceptible  of  obligations  and  laws.  Vattel,  1.  Nations 
being  composed  of  men  naturally  free  and  independent,  and 
who,  before  the  establishment  of  civil  societies,  live  together 
in  the  state  of  nature,  nations  or  sovereign  states;  are  to  be 
considered  as  so  many  free  persons,  living  together  in  a 
state  of  nature.  Vattel  2,  <^  4.  Every  nation  that  governs 
itself,  under  what  form  soever,  without  any  dependence 
on  a  foreign  power,  is  a  sovereign  state.  Its  rights  are 
naturally  the  same  as  those  of  any  other  state.  Such  are  mo- 
ral persons  who  live  together  in  a  natural  society,  under  the 
law  of  nations.  It  is  sufficient  if  it  be  really  sovereign  and 
independent:  that  is,  it  must  govern  itself  by  its  own  autho- 
rity and  laws.  We  ought,  therefore,  to  reckon  in  the  number 
of  sovereigns  those  states  that  have  bound  themselves  to  an- 
other more  powerful,  although  by  an  unequal  alliance.  The 
conditions  of  these  unequal  alliances  may  be  infinitely  varied; 
but  whatever  they  are,  provided  the  inferior  ally  reserves  to 
itself  the  sovereignty  or  the  right  to  govern  its  own  body,  it 
ought  to  be  considered  an  independent  state.  Consequently, 
a  weak  state,  that,  in  order  to  provide  for  its  safety,  places  it- 
self under  the  protection  of  a  more  powerful  one,  without 
stripping  itself  of  the  right  of  government  and  sovereignty, 
does  not  cease  on  this  account  to  be  placed  among  the  sove- 
reigns who  acknowledge  no  other  power.  Tributary  and 
feudatory  states  do  not  thereby  cease  to  be  sovereign  and  in- 
dependent states,  so  long  as  self  government,  and  sovereign 
and  independent  authorit}^  is  left  in  the  administration  of  the 
state.     Vattel,  c.  1,  pp.  16,  17. 

Testing  the  character  and  condition  of  the  Cherokee  Indians 
by  these  rules,  it  is  not  perceived  how  it  is  possible  to  escape 
the  conclusion,  that  they  form  a  sovereign  state.  They  have  al- 
ways been  dealt  with  as  such  by  the  government  of  the  United 
States;  both  before  and  since  the  adoption  of  the  present  consti- 
tution. They  have  been  admitted  and  treated  as  a  people  go- 
verned solely  and  exclusively  by  their  own  laws,  usages,  and 
customs  within  their  own  territory,  claiming  and  exercising  ex- 
clusive dominion  over  the  same;  yielding  up  bj'^  treaty,  from 
time  to  time,  portions  of  their  land,  but  still  claiming  absolute 
sovereignty  and  self  government  over  what  remained  unsold. 


198  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
And  this  has  been  the  light  in  which  they  have,  until  recently, 
been  considered  from  the  earliest  settlement  of  the  country  by 
the  white  people.  And  indeed,  I  do  not  understand  it  is  denied 
by  a  majority  of  the  court,  that  the  Cherokee  Indians  form  a 
sovereign  state  according  to  the  doctrine  of  the  law  of  nations; 
but  that,  although  a  sovereign  state,  they  are  not  considered 
a  foreign  state  within  the  meaning  of  the  constitution. 

Whether  the  Cherokee  Indians  are  to  be  considered  a  fo- 
reign state  or  not,  is  a  point  on  which  we  cannot  expect  to  - 
discover  much  light  from  the  law  of  nations.  We  must  de- 
rive this  knowledge  chiefly  from  the  practice  of  our  own  go- 
vernment, and  the  light  in  which  the  nation  has  been  viewed 
and  treated  by  it. 

That  numerous  tribes  of  Indians,  and  among  others  the  Che- 
rokee nation,  occupied  many  parts  of  this  country  long  before 
the  discovery  by  Europeans,  is  abundantly  established  by  his- 
tory; and  it  is  not  denied  but  that  the  Cherokee  nation  occu- 
pied the  territory  now  claimed  by  them  long  before  that  pe- 
riod. It  does  not  fall  within  the  scope  and  object  of  the  pre- 
sent inquiry  to  go  into  a  critical  examination  of  the  nature  and 
extent  of  the  rights  growing  out  of  such  occupancy,  or  the  jus- 
tice and  humanity  with  which  the  Indians  have  been  treated, 
or  their  rights  respected. 

That  they  are  entitled  to  such  occupancy,  so  long  as  they 
choose  quietly  and  peaceably  to  remain  upon  the  land,  can- 
not be  questioned.  The  circumstance  of  their  original  occu- 
pancy is  here  referred  to,  merely  for  the  purpose  of  showing, 
that  if  these  Indian  communities  were  then,  as  they  certainly 
were,  nations,  they  must  have  been  foreign  nations,  to  all  the 
world;  not  having  any  connexion,  or  alliance  of  any  descrip- 
tion, with  anyotherpower  on  earth.  And  if  the  Cherokeeswere 
then  a  foreign  nation;  when  or  how  have  they  lost  that  cha- 
racter, and  ceased  to  be  a  distinct  people,  and  become  incor- 
porated with   any  other   community? 

They  have  never  been,  by  conquest,  reduced  to  the  situation 
of  subjects  to  any  conqueror,  and  thereby  lost  their  separate 
national  existence,  and  the  rights  of  self  government,  and  be- 
come subject  to  the  laws  of  the  conqueror.  When  ever  wara 
have  taken  place,  they  have  been  followed  by  regular  trea- 
ties of  peace,  containing  stipulations  on  each  side  according 


JANUARY  TERM  1831.  199 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
to  existing  circumstances;  the  Indian  nation  always  preserv- 
ing its  distinct  and  separate  national  character.  And  notwith- 
standing we  do  not  recognize  the  right  of  the  Indians  to  trans- 
fer the  absolute  title  of  their  lands  to  any  other  than  our- 
selves; the  right  of  orciipancy  is  still  admitted  to  remain  in 
them,  accompanied  with  the  right  of  self  government,according 
to  their  own  usages  and  customs;  and  with  the  competency  to  act 
in  a  national  capacity,  although  placed  under  the  protection  of 
the  whites,  and  owing  a  qualified  subjection  so  far  as  is  re- 
quisite for  public  safety.  But  the  principle  is  universally  ad- 
mitted, that  this  occupancy  belongs  to  them  as  matter  of  right, 
and  not  by  mere  indulgence.  They  cannot  be  disturbed  in 
the  enjoyment  of  it,  or  deprived  of  it,  without  their  free  con- 
sent; or  unless  a  just  and  necessary  war  should  sanction  their 
dispossession. 

In  this  view  of  their  situation,  there  is  as  full  and 
complete  recognition  of  their  sovereignty,  as  if  they  were 
the  absolute  owners  of  the  soil.  The  progress  made  in  civi- 
lization by  the  Cherokee  Indians  cannot  surely  be  consider- 
ed as  in  any  measure  destroying  their  national  or  foreign 
character,  so  long  as  they  are  permitted  to  maintain  a  sep- 
arate and  distinct  government;  it  is  their  political  con- 
dition that  constitutes  their  foreign  character,  and  in  that 
sense  must  the  i^xxa  foreign,  be  understood  as  used  in  the  con- 
stitution. It  can  have  no  relation  to  local,  geographical,  or 
territorial  position.  It  cannot  mean  a  country  beyond  sea. 
Mexico  or  Canada  is  certainly  to  be  considered  a  foreign 
country,  in  reference  to  the  United  States.  It  is  the  poli- 
tical relation  in  which  one  government  or  country  stands  to 
another,  which  constitutes  it  foreign  to  the  other.  The 
Cherokee  territory  being  within  the  chartered  limits  of 
Georgia,  does  not  affect  the  question.  When  Georgia  is  spoken 
of  as  a  state,  reference  is  had  to  its  political  character,  and  not 
to  boundary;  and  it  is  not  perceived  that  any  absurdity  or  in- 
consistency grows  out  of  the  circumstance,  that  the  jurisdic- 
tion and  territory  of  the  state  of  Georgia  surround  or  extend 
on  every  side  of  the  Cherokee  territory.  It  may  be  incon- 
venient to  the  state,  and  very  desirable,  that  the  Cherokees 
should  be  removed;  but  it  does  not  at  all  affect  the  political 
relation  between  Georgia  and  those  Indians.     Suppose   the 


200  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
Cherokee  territory  had  been  occupied  by  Spaniards  or  any 
other  civilized  people,  instead  of  Indians,  and  they  had  from 
time  to  time  ceded  to  the  United  States  portions  of  their  lands 
precisely  in  the  same  manner  as  the  Indians  have  done,  and 
in  like  manner  retained  and  occupied  the  part  now  held  by 
the  Cherokees,  and  having  a  regular  government  established 
there:  would,  it  not  only  be  considered  a  separate  and  distinct 
nation  or  state,  but  a  foreign  nation,  with  reference  to  the 
state  of  Georgia  or  the  United  States.  If  we  look  to  lexicog- 
raphers, as  well  as  approved  writers,  for  the  use  of  the  term 
foreign,  it  may  be  applied  with  the  strictest  propriety  to  the 
Cherokee  nation. 

In  a  general  sense  it  is  applied  to  any  person  or  thing  belong- 
ing to  another  nation  orcountry.  We  call  an  alien  a  foi-eigner, 
because  he  is  not  of  the  country  in  which  we  reside.  In  a  po- 
litical sense  we  call  every  country  foreign,  which  is  not  within 
the  jurisdiction  of  the  same  government.  In  this  sense,  Scot- 
land before  the  union  was  foreign  to  England;  and  Canada 
and  Mexico  foreign  to  the  United  States.  In  the  United 
States  all  transatlantic  countries  are  ff)reign  to  us.  But  this  is 
not  the  only  sense  in  which  it  is  used. 

It  is  applied  with  equal  propriety  to  an  adjacent  territory,  as 
to  one  more  remote.  Canada  or  Mexico  is  as  much  foreign 
to  us  as  England  or  Spain.  And  it  may  be  laid  down  as  a 
general  rule,  that  when  used  in  relation  to  countries  in  a  poli- 
tical sense,  it  refers  to  the  jurisdiction  or  government  of  the 
country.  In  a  commercial  sense,  we  call  all  goods  coming 
from  any  country  not  within  our  own  jurisdiction  foreign 
goods. 

In  the  diplomatic  use  of  the  term,  we  call  every  minister  a 
foreign  minister  who  comes  from  another  jurisdiction  or  gov- 
ernment. And  this  is  the  sense  in  which  it  is  judicially  used 
by  this  court,  even  as  between  the  different  states  of  this 
union.  In  the  case  of  Buckner  vs.  Finlay,  2  Peters,  590,  it 
was  held  that  a  bill  of  exchange  drawn  in  one  ^tate  of  the 
union,  on  a  person  living  in  another  state,  was  a  foreign  bill, 
and  to  be  treated  as  such  in  the  courts  of  the  United  States. 
The  court  says,  that  in  applying  the  definition  of  a  foreign 
bill,  to  the  political  character  of  the  several  states  of  this 
union,  in  relation  to  each  other,  we  are  all  clearly  of  opinion, 


i 


JANUARY  TERM  1831.  201 

[The  Cberokee  Nation  vs.  The  State  of  Georgia.] 
that  bills  drawn  in  one  of  these  states  upon  persons  living  in 
another  of  them,  partake  of  the  character  of  foreign  bills, 
and  ought  to  be  so  treated.  That  for  all  national  purposes 
embraced  by  the  federal  constitution,  the  states  and  the  citi- 
zens thereof  are  ane;  united  under  the  same  sovereign  autho- 
rity, and  governed  by  the  same  laws.  In  all  other  respects, 
the  states  are  necessarily  foreign  to,  and  independent  of  each 
other;  their  constitutions  and  forms  of  government  being, 
although  republican,  altogether  different,  as  are  their  laws  and 
institutions.  So  in  the  case  of  Warder  vs.  Arrell,  decided  in 
the  court  of  appeals  of  Virginia,  2  Wash.  298.  The  court, 
in  speaking  of  foreign  contracts,  and  saying  that  the  laws  of 
the  foreign  country  where  the  contract  was  made  must  govern, 
add;  the  same  principle  applies,  though  with  no  greater  force, 
to  the  different  states  of  America:  for  though  they  form  a 
confederated  government,  yet  the  several  states  retain  their 
individual  sovereignties;  and,  with  respect  to  their  municipal 
regulations,  are  to  each  other  foreign. 

It  is  manifest  from  these  cases,  that  a  foreign  state,  judicially 
considered,  consists  in  its  being  under  a  different  jurisdiction 
or  government,  without  any  reference  to  its  territorial  posi- 
tion. This  is  the  marked  distinction,  particularly  in  the  case 
of  Buckner  vs.  Finlay.  So  far  as  these  states  are  subject  to 
the  laws  of  the  union,  they  are  not  foreign  to  each  other.  But 
so  far  as  they  are  subject  to  their  own  respective  state  laws 
and  government,  they  are  foreign  to  each  other.  And  if,  as 
here  decided,  a  separate  and  distinct  jurisdiction  or  govern- 
ment is  the  test  by  which  to  decide  whether  a  nation  be  foreign 
or  not;  I  am  unable  to  perceive  any  sound  and  substantial 
reason  why  the  Cherokee  nation  should  not  be  so  considered. 
t^  It  is  governed  by  its  own  laws,  usages  and  customs:  it  has  no 
connexion  with  any  other  government  or  jurisdiction,  except 
by  way  of  treaties  entered  into  with  like  form  and  ceremony 
as  with  other  foreign  nations.  And  this  seems  to  be  the  view 
taken  of  them  by  Mr  Justice  Johnson  in  the  case  of  Fletcher 
vs.  Peck,  6   Cranch,  146;  2  Peters's  Condons.    Rep.   308. 

In  speaking  of  the  state  and  condition  of  the  different  Indian 

nations,  he   observes,  "that  some  have   totally  extinguished 

their  national  fire,   and  submitted  themselves  to  the  laws  of 

the  states;  others  have  by  treaty  acknowledged  that  they  hold 

2  A 


202  SUPREME   COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
their  national  existence  at  the  will  of  the  state,  within  which 
they  reside;  others  retain  a  limited  sovereignty,  and  the  abso- 
lute proprietorship  of  their  soil.  The  latter  is  the  case  of  the 
tribes  to  the  west  of  Georgia,  among  which  are  the  Cherokees. 
We  legislate  upon  the  conduct  of  strangers  or  citizens  within 
their  limits,  but  innumerable  treaties  formed  with  them  ac- 
knowledge them  to  be  an  independent  people;  and  the  uni- 
form practice  of  acknowledging  their  right  of  soil  by  pur- 
chasing from  them,  and  restraining  all  persons  from  encroach- 
ing upon  their  territory,  makes  it  unnecessary  to  insist  upon 
their  rights  of  soil." 

Although  there  are  man}'  cases  in  which  one  of  these  United 
States  has  been  sued  by  another,  I  am  not  aware  of  any  in- 
stance in  which  one  of  the  United  States  has  been  sued  by  a 
foreign  state.  But  no  doubt  can  be  entertained  that  such  an 
action  might  be  sustained  upon  a  proper  case  being  presented. 
It  is  expressly  provided  for  in  the  constitution;  and  this  pro- 
vision  is  certainly  not  to  be  rejected  as  entirely  nugatory. 

Suppose  a  state,  with  the  consent  of  congress,  should  enter 
into  an  agreement  with  a  foreign  power  (as  might  undoubtedly 
be  done.  Constitution,  Art.  1,  §  10)  for  a  loan  of  money;  would 
not  an  action  be  sustained  in  this  court  to  enforce  payment 
thereof  ?  Or  suppose  the  state  of  Georgia,  with  the  consent 
of  congress,  should  purchase  the  right  of  the  Cherokee  In- 
dians to  this  territory,  and  enter  into  a  contract  for  the  pay- 
ment of  the  purchase  money;  could  there  be  a  doubt  that  an 
action  could  be  sustained  upon  such  a  contract?  No  objection 
would  certainly  be  made  for  want  of  competency  in  that  nation 
to  make  a  valid  contract.  The  numerous  treaties  entered 
into  with  the  nation  would  be  a  conclusive  answer  to  any 
such  objection.  And  if  an  action  could  be  sustained  in  such 
case,  it  must  be  under  that  provision  in  the  constitution 
which  gives  jurisdiction  to  this  court  in  controversies  be- 
tween a  state  and  a  foreign  state.  For  the  Cherokee  nation  is 
certainly  not  one  of  the   United   States. 

And  what  possible  objection  can  lie  to  the  right  of  the  com- 
plainants to  sustain  an  action?  The  treaties  made  with  this  na- 
tion purport  to  secure  to  it  certain  rights.  These  are  not  gra- 
tuitous obligations  assumed  on  the  part  of  the  United  States. 
They  are  obligations  founded  upon  a  consideration  paid  by  the 


JANUARY  TERM  1831.  203 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
Indians  by  cession  of  part  of  their  territory.  And  if  they,  as  a 
nation,  are  competent  to  make  a  treaty  or  contract,  it  would 
seem  to  me  to  be  a  strange  inconsistency  to  deny  to  them  the 
right  and  the  power  to  enforce  such  a  contract.  And  where  the 
right  secured  by  such  treaty  forms  a  proper  subject  for  judicial 
cognizance,  I  can  perceive  no  reason  why  this  court  has  not 
jurisdiction  of  the  case.  The  constitution  expressly  gives  to 
the  court  jurisdiction  in  all  cases  of  law  and  equity  arising 
under  treaties  made  with  the  United  States.  No  suit  will  lie 
against  the  United  States  upon  such  treaty,  because  no  possi- 
ble case  can  exist  where  the  United  States  can  be  sued.  But 
not  so  Avith  respect  to  a  state:  and  if  any  right  secured  by 
treaty  has  been  violated  by  a  state,  in  a  case  proper  for  judi- 
cial inquiry,  no  good  reason  is  perceived  why  an  action  may 
not  be  sustained  for  violation  of  a  right  secured  by  treaty,  as 
well  as  by  contract  under  any  other  form.  The  judiciary  is 
certainly  not  the  department  of  the  government  authorised  to 
enforce  all  rights  that  may  be  recognized  and  secured  by 
treaty.  In  many  instances,  these  are  mere  political  rights  with 
which  the  judiciary  cannot  deal.  But  when  the  question  re- 
lates to  a  mere  right  of  property,  and  a  proper  case  can  be 
made  between  competent  parties;  it  forms  a  proper  subject  for 
judicial  inquiry. 

It  is  a  rule  which  has  been  repeatedly  sanctioned  by  this 
court,  that  the  judicial  department  is  to  consider  as  sovereign 
and  independent  states  or  nations  those  powers,  that  are  recog- 
nized as  such  by  the  executive  and  legislative  departments  of 
the  government;  they  being  more  particularly  entrusted  with 
our  foreign  relations.  4  Cranch,  241,  2  Peters's  Cond.  Rep.  98; 
3  Wheat.  634;  4  Wheat.  64. 

If  we  look  to  the  whole  course  of  treatment  by  this  country  of 
the  Indians,  from  the  year  1775,  to  the  present  day,  when  deal- 
ing with  them  in  their  aggregate  capacity  as  nations  or  tribes, 
and  regarding  the  mode  and  manner  in  which  all  negotiations 
have  been  carried  on  and  concluded  with  them;  the  conclusion 
appears  to  me  irresistible,  that  they  have  been  regarded,  by  the 
executive  and  legislative  branches  of  the  government,  not  only 
as  sovereign  and  independent,  but  as  foreign  nations  or  tribes, 
not  within  the  jurisdiction  nor  under  the  government  of  the 
states  within  which  they  were  located.    This  remark  is  to  be 


204  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
understood,  of  course,  as  referring  only  to  such  as  live  together 
as  a  distinct  community,  under  their  own  laws,  usages  and  cus- 
toms; and  not  to  the  mere  remnant  of  tribes  which  are  to  be 
found  in  many  parts  of  our  country,  who  have  become  mixed 
with  the  general  population  of  the  country:  their  national 
character  extinguished;  and  their  usages  and  customs  in  a 
great  measure  abandoned;  self  government  surrendered;  and 
who  have  voluntarily,  or  by  the  force  of  circumstances  which 
surrounded  them,  gradually  become  subject  to  the  laws  of  the 
states  within  which  they  are  situated. 

Such,  however,  is  not  the  case  with  the  Cherokee  nation. 
It  retains  its  usages  and  customs  and  self  government,  greatly 
improved  by  the  civilization  which  it  has  been  the  policy  of 
the  United  States  to  encourage  and  foster  among  them.  All 
negotiations  carried  on  with  the  Cherokees  and  other  Indian 
nations  have  been  by  way  of  treaty  with  all  the  formality  at- 
tending the  making  of  treaties  with  any  foreign  power.  The 
journals  of  congress,  from  the  year  1775  down  to  the  adop- 
tion of  the  present  constitution,  abundantly  establish  this  fact. 
And  since  that  period  such  negotiations  have  been  carried  on 
by  the  treaty-making  power,  and  uniformly  under  the  denomi- 
nation of  treaties. 

What  is  a  treaty  as  understood  in  the  law  of  nations?  It  is 
an  agreement  or  contract  between  two  or  more  nations  or 
sovereigns,  entered  into  by  agents  appointed  for  that  purpose, 
and  duly  sanctioned  by  the  supreme  power  of  the  respective 
parties.  And  where  is  the  authority,  either  in  the  constitu- 
tion or  in  the  practice  of  the  government,  for  making  any 
distinction  between  treaties  made  with  the  Indian  nations  and 
any  other  foreign  power?  They  relate  to  peace  and  war;  the 
surrender  of  prisoners;  the  cession  of  territory;  and  the  vari- 
ous subjects  which  are  usually  embraced  in  such  contracts  be- 
tween sovereign  nations, 

A  recurrence  to  the  various  treaties  made  with  tlie  Indian 
nations  and  tribes  in  different  parts  of  the  country,  will  fully 
illustrate  this  view  of  the  relation  in  which  our  government 
has  considered  the  Indians  as  standing.  It  will  be  sufficient, 
however,  to  notice  a  few  of  the  many  treaties  made  with  this 
Cherokee  nation. 

By  tlie   treaty  of  Hopewell  of  the  28th  November  1785, 


JANUARY  TERM  1831.  205 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
1  Laws  U.  S.  322,  mutual  stipulations  are  entered  into, 
to  restore  all  prisoners  taken  by  either  party,  and  the  Che- 
rokees  stipulate  to  restore  all  negroes,  and  all  other  pro- 
perty taken  from  the  citizens  of  the  United  States;  and 
a  boundary  line  is  settled  between  the  Cherokees,  and  the 
citizens  of  the  United  States,  and  this  embraced  territory 
within  the  chartered  limits  of  Georgia.  And  by  the  sixth 
article  it  is  provided,  that  if  any  Indian,  or  person  residing 
among  them,  or  who  shall  take  refuge  in  their  nation,  shall 
commit  a  robbery,  or  murder,  or  other  capital  crime  on  any 
citizen  of  the  United  States,  or  person  under  their  protection, 
the  nation  or  tribe  to  which  such  offender  may  belong  shall  deli- 
ver him  up  to  be  punished  according  to  the  ordinances  of  the 
United  States.  What  more  explicit  recognition  of  the  sove- 
reignty and  independence  of  this  nation  could  have  been 
made?  It  was  a  direct  acknowledgement,  that  this  territory 
was  under  a  foreign  jurisdiction.  If  it  had  been  understood, 
that  the  jurisdiction  of  the  state  of  Georgia  extended  over  this 
territory,  no  such  stipulation  would  have  been  necessary. 
The  process  of  the  courts  of  Georgia  would  have  run  into  this 
as  well  as  into  any  other  part  of  the  state.  It  is  a  stipulation 
analogous  to  that  contained  in  the  treaty  of  1794  with  Eng- 
land,! LawsU.  S.  220,  by  the  twenty -seventh  article  of  which  it 
is  mutually  agreed,  that  each  party  will  deliver  up  to  justice  all 
persons,  who,  being  charged  with  murder  or  forgery  commit- 
ted within  the  jurisdiction  of  either,  shall  seek  an  asylum 
within  any  of  the  countries  of  the  other.  Upon  what  ground 
can  any  distinction  be  made,  as  to  the  reason  and  necessity  of 
such  stipulation,  in  the  respective  treaties.  The  necessity 
for  the  stipulation  in  both  cases  must  be,  because  the  process 
of  one  government  and  jurisdiction  will  not  run  into  that  of 
another;  and  separate  and  distinct  jurisdiction," as  has  been 
shown,  is  what  makes  governments  and  nations  foreign  to  each 
other  in  their  political  relations. 

The  same  stipulation,  as  to  delivering  up  criminals  who 
shall  take  refuge  in  the  Cherokee  nation,  is  contained  in  the 
treaty  of  Holston  of  the  2d  of  July  1791,  1  Laws  U.  S.  327. 
And  the  eleventh  article  fully  recognizes  the  jurisdiction  of 
the  Cherokee  nation  over  the  territory  occupied  by  them.  It 
provides,  that  if  any  citizen  of  the  United  States  shall  go  into 


206  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
the  territory  belonging  to  the  Cherokees,  and  commit  any 
crime  upon,  or  trespass  against  the  person,  or  property  of  any 
friendly  Indian,  which,  if  committed  within  the  jurisdiction  of 
any  state,  would  be  punishable  by  the  laws  of  such  state,  shall 
be  subject  to  the  same  punishment,  and  proceeded  against  in 
the  same  manner,  as  if  the  offence  had  been  committed  within 
the  jurisdiction  of  the  state.  Here  is  an  explicit  admission 
that  the  Cherokee  territory  is  not  within  the  jurisdiction  of  any 
state.  If  it  had  been  considered  within  the  jurisdiction  of 
Georgia,  such  a  provision  would  not  only  be  unnecessary  but  ab- 
surd. It  is  a  provision  looking  to  the  punishment  of  a  citizen 
of  the  United  States  for  some  act  done  in  a  foreign  country. 
If  exercising  exclusive  jurisdictionover  a  country  is  sufficient 
to  constitute  the  state  or  power  so  exercising  it  a  foreign  state, 
the  Cherokee  nation  may  assuredly  with  the  greatest  propriety 
be  so  considered. 

The  phraseology  of  the  clause  in  the  constitution,  giving  to 
congress  the  power  to  regulate  commerce,  is  supposed  to  afford 
an  argument  against  considering  the  Cherokees  a  foreign  na- 
tion. The  clause  reads  thus,  "  to  regulate  commerce  with 
foreign  nations,  and  among  the  several  states,  and  with  the  In- 
dian tribes."  Constitution,  Art.  1,  <§  8.  The  argument  is,  that  if 
the  Indian  tribes  are  foreign  nations,  they  would  have  been 
included  without  being  specially  named,  and  being  so  named 
imports  something  different  from  the  previous  term  "fo- 
reign nations." 

This  appears  to  me  to  partake  too  much  of  a  mere  verbal 
criticism,  to  draw  after  it  the  important  conclusion  that  In- 
dian tribes  are  not  foreign  nations.  But  the  clause  affords, 
irresistibly,  the  conclusion,  that  the  Indian  tribes  are  not  there 
understood  as  included  within  the  description,  of  the  *'  several 
states;"  or  there  could  have  been  no  fitness  in  immediately 
thereafter  particularizing  "  the  Indian  tribes." 

It  is  generally  understood  that  every  separate  body  of  In- 
dians is  divided  into  bands  or  tribes,  and  forms  a  little  com- 
munity within  the  nation  to  which  it  belongs;  and  as  the 
nation  has  some  particular  symbol  by  which  it  is  distinguished 
from  others,  so  each  tribe  has  a  badge  from  which  it  is  de- 
nominated, and  each  tribe  may  have  rights  applicable  to  itself. 

Cases  may  arise  where  the  trade  with  a  particular  tribe  may 


JANUARY  TERM  1831.  207 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
require  to  be  regulated,  and  which  might  not  have  been  em- 
braced under  the  general  description  of  the  term  nation,  or 
it  might  at  least  have  left  the  case  somewhat  doubtful;  as  the 
clause  was  intended  to  vest  in  congress  the  power  to  regulate  all 
commercial  intercourse,  this  phraseology  was  probably  adopted 
to  meet  all  possible  cases;  and  the  provision  would  have  been 
imperfect,  if  the  term  Indian  tribes  had  been  omitted. 

Congress  could  not  then  have  regulated  the  trade  with  any 
particular  tribe  that  did  not  extend  to  the  whole  nation.  Or, 
it  may  be,  that  the  term  tribe  is  here  used  as  importing  the 
same  thing  as  that  of  nation,  and  adopted  merely  to  avoid  the 
repetition  of  the  term  nation:  and  the  Indians  are  specially 
named,  because  there  was  a  provision  somewhat  analogous  in 
the  confederation;  and  entirely  omitting  to  name  the  Indian 
tribes,  might  have  afforded  some  plausible  grounds  for  con- 
cluding that  this  branch  of  commercial  intercourse  was  not  sub- 
ject to  the  power  of  congress. 

On  examining  the  journals  of  the  old  congress,  which  con- 
tain numerous  proceedings  and  resolutions  respecting  the  In- 
dians, the  terms  ''  nation"  and  "  tribe"  are  frequently  used 
indiscriminately,  and  as  importing  the  same  thing;  and  trea- 
ties were  sometimes  entered  into  with  the  Indians,  under  the 
description  or  denomination  of  tribes,  without  naming  the  na- 
tion. See  Journals  30th  June  and  12th  July  1775;  Sth  March 
1776;  20th  October  1777:  and  numerous  other  instances. 

But  whether  any  of  these  suggestions  will  satisfactorily 
account  for  the  phraseology  here  used  or  not,  it  appears 
to  me  to  be  of  too  doubtful  import  to  outweigh  the  consid- 
erations to  which  I  have  referred  to  show  that  the  Chero- 
kees  are  a  foreign  nation.  The  difference  between  the  pro- 
vision in  the  constitution  and  that  in  the  confederation  on  this 
subject  appears  to  me  to  show  very  satisfactorily,  that  so  far 
as  related  to  trade  and  commerce  with  the  Indians  wherever 
found  in  tribes,  whether  within  or  without  the  limits  of  a  state, 
was  subject  to  the  regulation  of  congress. 

The  provision  in  the  confederation.  Art.  9,  1  Laws  United 
States,  17,  is,  that  congress  shall  have  the  power  of  regulatino- 
the  trade  and  management  of  all  affairs  with  the  Indians  not 
members  of  any  of  the  states,  provided  that  the  legislative  right 
of  any  state  within  its  own  limits  be  not  infringed  or  violated. 


208  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
The  true  import  of  this  provision  is  certainly  not  very  obvious; 
see  Federalist,  No.  42.  What  were  the  legislative  rights  in- 
tended to  be  embraced  within  the  proviso  is  left  in  great  un- 
certainty. But  whatever  difficulty  on  that  subject  might  have 
arisen  under  the  confederation,  it  is  entirely  removed  by  the 
omission  of  the  proviso  in  the  present  constitution;  thereby 
leaving  this  power  entirely  with  congress,  without  regard  to 
any  state  right  on  the  subject;  and  showing  that  the  Indian 
tribes  were  considered  as  distinct  communities  although  within 
the  limits  of  a  state. 

The  provision,  as  contained  in  the  confederation,  may  aid 
in  illustrating  what  is  to  be  inferred  from  some  parts  of  the 
constitution.  Art.  1,  §  1,  par.  3,  as  to  the  apportionment  of 
representatives,  and  acts  of  congress  in  relation  to  the  Indians, 
to  wit,  that  they  are  divided  into  two  distinct  classes.  One 
composed  of  those  who  are  considered  members  of  the  state 
within  which  they  reside,  and  the  other  not:  the  former 
embracing  the  remnant  of  the  tribes  who  had  lost  their  dis- 
tinctive character  as  a  separate  community,  and  had  become 
subject  to  the  laws  of  the  states;  and  the  latter  such  as  still  re- 
tained their  original  connexion  as  tribes,  and  live  together 
under  their  own  laws,  usages  and  customs,  and,  as  .such,  are 
treated  as  a  community  independent  of  the  state.  No  very 
important  conclusion  I  think,  therefore,  can  be  drawn  from 
the  use  of  the  term  "  tribe"  in  this  clause  of  the  constitution; 
intended  merely  for  commercial  regulations.  If  considered 
as  importing  the  same  thing  as  the  term  ''nation,"  it  might 
have  been  adopted  to  avoid  the  repetition  of  the  word  nation. 

Other  instances  occur  in  the  constitution  where  different 
terms  are  used  importing  the  same  thing.  Thus,  in  the  clause 
giving  jurisdiction  to  this  court,  the  term  "  foreign  states" 
is  used  instead  of  "foreign  nations,'^  as  in  the  clause  relat- 
ing to  commerce.  And  again,  in  Art.  1,  §  10,  a  still  different 
phraseology  is  employed.  *'  No  state,  without  the  consent 
of  congress,  shall  enter  into  any  agreement  or  compact  with  a 
'foreign  power.'"  But  each  of  these  terms,  nation,  state, 
power,  as  used  in  different  parts  of  the  constitution,  imports 
the  same  thing,  and  does  not  admit  of  a  different  interpreta- 
tion. In  the  treaties  made  with  the  Indians,  they  are  some- 
times designated  under  the  name  of  tribe,  and  sometimes  that 


JANUARY  TERM  1831.  209 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
oi  nation.  In  the  treaty  of  1804  with  the  Delaware  Indians, 
they  are  denominated  the  "Delaware  tribe  of  Indians."  1 
Laws  United  States,  305.  And  in  a  previous  treaty  with  the 
same  people  in  the  year  1778,  they  are  designated  by  the  name 
of  "the  Delaware  nation."    1  Laws  United  States,  S02. 

As  this  was  one  of  the  earliest  treaties  made  with  the  In- 
dians, its  provisions  may  serve  to  show  in  what  light  the  In- 
dian nations  were  viewed  by  congress  at  that  day. 

The  territory  of  the  Delaware  nation  was  within  the  limits 
of  the  states  of  New  York,  Pennsylvania  and  New  Jersey. 
Yet  we  hear  of  no  claim  of  jurisdiction  set  up  by  those  states 
over  these  Indians.  This  treaty,  both  in  form  and  substance 
purports  to  be  an  arrangement  with  an  independent  sovereign 
power.  It  even  purports  to  be  articles  of  confederation.  It 
contains  stipulations  relative  to  peace  and  war,  and  for  per- 
mission to  the  United  States  troops  to  pass  through  the  country 
of  the  Delaware  nation.  That  neither  party  shall  protect  in 
their  respective  states,  servants,  slaves,  or  criminals,  fugitives 
from  the  other;  but  secure,  and  deliver  them  up.  Trade 
is  regulated  between  the  parties.  And  the  sixth  article  shows 
the  early  pledge  of  the  United  States  to  protect  the  Indians  in 
their  possessions,  against  any  claims  or  encroachments  of  the 
states.  It  recites,  that  whereas  the  enemies  of  the  United 
States  have  endeavoured  to  impress  the  Indians  in  general 
with  an  opinion  that  it  is  the  design  of  the  states  to  extir- 
pate the  Indians,  and  take  possession  of  their  country,  to 
obviate  such  false  suggestions;  the  United  States  do  engage  to 
guaranty  to  the  aforesaid  nation  of  Delawares  and  their  heirs, 
all  their  territorial  rights,  in  the  fullest  and  most  ample  man- 
ner, as  it  has  been  bounded  by  former  treaties,  &c.  And  pro- 
vision is  even  made  for  inviting  other  tribes  to  join  the  con- 
federacy; and  to  form  a  state;  and  have  a  representation  in 
congress;  should  it  be  found  conducive  to  the  mutual  interest 
of  both  parties.  All  which  provisions  are  totally  inconsistent 
with  the  idea  of  these  Indians  being  considered  under  the 
jurisdiction  of  the  states;  although  their  chartered  limits  might 
extend  over  them. 

The   recital,    in  this   treaty,    contains    a   declaration    and 
admission  of  congress  of  the   rights  of  Indians   in  general; 
and    that  the    impression    which    our    enemies   were    cndea- 
2  B 


210  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
vouring  to  make,  that  it  was  the  design  of  the  states  to 
extirpate  them  and  take  their  lands,  was  false.  And  the  same 
recognition  of  their  rights  runs  through  all  the  treaties  made 
with  the  Indian  nations  or  tribes,  from  that  day  down  to  the 
present  time. 

The  twelfth  article  of  the  treaty  of  Hopewell  contains  a  full 
recognition  of  the  sovereign  and  independent  character  of  the 
Cherokee  nation.  To  impress  upon  them  full  confidence  in 
the  justice  of  the  United  States  respecting  their  interest,  they 
have  a  right  to  send  a  deputy  of  their  choice  to  congress.  No 
one  can  suppose  that  such  deputy  was  to  take  his  seat  as  a 
member  of  congress;  but  that  he  would  be  received  as  the 
agent  of  that  nation.  It  is  immaterial  what  such  agent  is  called, 
whether  minister,  commissioner  or  deputy;  he  is  to  represent 
his  principal. 

There  could  have  been  no  fitness  or  propriety  in  any  such 
stipulation,  if  the  Cherokee  nation  had  been  considered  in 
any  way  incorporated  with  the  state  of  Georgia,  or  as  citizens 
of  that  state.  The  idea  of  the  Cherokees  being  considered 
citizens  is  entirely  inconsistent  with  several  of  our  treaties 
with  them.  By  the  eighth  article  of  the  treaty  of  the  26th 
December  1817,  6  Laws  U.  S.  706,  the  United  States  stipu- 
late to  give  640  acres  of  land  to  each  head  of  any  Indian  fam- 
ily residing  on  the  lands  now  ceded,  or  which  may  hereafter  be 
surrendered  to  the  United  States,  who  may  wish  to  become 
citizens  of  the  United  States;  so  also  the  second  article  of 
the  treaty  with  the  same  nation,  of  the  10th  of  March  1819, 
contains  the  same  stipulation  in  favour  of  the  heads  of  families, 
who  may  choose  to  become  citizens  of  the  United  States; 
thereby  clearly  showing  that  they  were  not  considered  citi- 
zens at  the  time  those  stipulations  were  entered  into,  or  the 
provision  would  have  been  entirely  unnecessary  if  not  absurd. 
And  if  not  citizens,  they  must  be  aliens  or  foreigners,  and 
such  must  be  the  character  of  each  individual  belonging  to 
the  nation.  And  it  was,  therefore,  very  aptly  asked  on  the 
argument,  and  I  think  not  very  easily  answered,  how  a  nation 
composed  of  aliens  or  foreigners  can  be  other  than  a  foreign 
nation. 

The  question  touching  the  citizenship  of  an  Oneida  Indian 
came  under  the  consideration  of  the  supreme  court  of  New 


JANUARY  TERM  1831.  211 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
York  in  the  case  of  Jackson  vs.  Goodel,  20  Johns.  193.  The 
lessor  of  the  plaintiff  was  the  son  of  an  Oneida  Indian  who 
had  received  a  patent  for  the  lands  in  question,  as  an  offi- 
cer in  the  revolutionary  war;  and  although  the  supreme 
court,  under  the  circumstances  of  the  case,  decided  he  was  a 
citizen,  yet  chief  justice  Spencer  observed;  we  do  not  mean 
to  say  that  the  condition  of  the  Indian  tribes  (alluding  to  the 
six  nations),  at  former  and  remote  periods,  has  been  that  of 
subjects  or  citizens  of  the  state;  their  condition  has  been  gra- 
dually changing,  until  they  have  lost  every  attribute  of  sov- 
ereignty, and  become  entirely  dependent  upon  and  subject  to 
our  government.  But  the  cause  being  carried  up  to  the  court 
of  errors,  chancellor  Kent,  in  a  very  elaborate  and  able  opinion 
on  that  question,  came  to  a  different  conclusion  as  to  the  citi- 
zenship of  the  Indian,  even  under  the  strong  circumstances  of 
that  case. 

"The  Oneidas,"  he  observed,  and  "the  tribes  composing  the 
six  nations  of  Indians,  were  originally  free  and  independent  na- 
tions, and  it  is  for  the  counsel  who  contend  that  they  have  now 
ceased  to  be  a  distinct  people  and  become  completely  incor- 
porated with  us,  to  point  out  the  time  when  that  event  took 
place.  In  myview  they  have  never  been  regarded  as  citizens, 
or  members  of  our  body  politic.  They  have  always  been, 
and  still  are,  considered  by  our  laws  as  dependent  tribes,  gov- 
erned by  their  own  usages  and  chiefs;  but  placed  under  our 
protection,  and  subject  to  our  coercion  so  far  as  the  public  safety 
required  it,  and  no  farther.  The  whites  have  been  gradually 
pressing  upon  them,  as  they  kept  receding  from  the  approaches 
of  civilization.  We  have  purchased  the  greater  part  of  their 
lands,  destroyed  their  hunting  grounds,  subdued  the  wilder- 
ness around  them^,  overwhelmed  them  with  our  population, 
and  gradually  abridged  their  native  independence.  Still  they 
are  permitted  to  exist  as  distinct  nations,  and  we  continue  to 
treat  with  their  sachems  in  a  national  capacity,  and  as  being 
the  lawful  representatives  of  their  tribes.  Through  the  whole 
course  of  our  colonial  history,  these  Indians  were  considered 
dependent  allies.  The  colonial  authorities  uniformly  nego- 
tiated with  them,  and  made  and  observed  treaties  with  them 
as  sovereign  communities  exercising  the  right  of  free  delibe- 
ration and  action;  but,  in  consideration  of  protection,  owing 


212  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
a  qualified  subjection  in  a  national  capacity  to  the  British 
crown.  No  argument  can  be  drawn  against  the  sovereignty 
of  these  Indian  nations,  from  the  fact  of  their  having  put 
themselves  and  their  lands  under  the  protection  of  the  British 
crown:  such  a  fact  is  of  frequent  occurrence  between  inde- 
pendent nations.  One  community  may  be  bound  to  another 
by  a  very  unequal  alliance,  and  still  be  a  sovereign  state.  Vat. 
B.  1,  ch.  16,  <^  194.  The  Indians,  though  born  within  our 
territorial  limits,  are  considered  as  born  under  the  dominion 
of  their  own  tribes.  There  is  nothing  in  the  proceedings  of 
the  United  States  during  the  revolutionary  war,  which  went 
to  impair  and  much  less  to  extinguish  the  national  character 
of  the  six  nations,  and  consolidate  them  with  our  own  people. 
Every  public  document  speaks  a  different  language,  and  ad- 
mits their  distinct  existence  and  competence  as  nations;  but 
placed  in  the  same  state  of  dependence,  and  calling  for  the 
same  protection  which  existed  before  the  war.  In  the  treaties 
made  with  them  we  have  the  forms  and  requisites  peculiar  to 
the  intercourse  between  friendly  and  independent  states;  and 
they  are  conformable  to  the  received  institutes  of  the  law  of 
nations.  What  more  demonstrable  proof  can  we  require  of 
existing  and  acknowledged  sovereignty." 

If  this  be  a  just  view  of  the  Oneida  Indians,  the  rules  and 
principles  here  applied  to  that  nation  may  with  much  greater 
force  be  applied  to  the  character,  state,  and  condition  of  the 
Cherokee  nation  of  Indians;  and  we  may  safely  conclude  that 
they  are  not  citizens,  and  must  of  course  be  aliens:  and,  if 
aliens  in  their  individual  capacities,  it  will  be  difficult  to  escape 
the  conclusion,  that,  as  a  community,  they  constitute  a  foreign 
nation  or  state,  and  thereby  become  a  competent  party  to 
maintain  an  action  in  this  court,  according  to  the  express 
terms  of  the  constitution. 

And  why  should  this  court  scruple  to  consider  this  nation 
a  competent  party  to  appear  here? 

Other  departments  of  the  government,  whose  right  it  is  to 
decide  what  powers  shall  be  recognized  as  sovereign  and  in- 
dependent nations,  have  treated  this  nation  as  such.  They 
have  considered  it  competent,  in  its  political  and  national  capa- 
city, to  enter  into  contracts  of  the  most  solemn  character;  and 
if  these  contracts  contain  matter  proper  for  judicial  inquiry, 


JANUARY  TERM  1831.  213 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
why  should  we  refuse  to  entertain  jurisdiction  of  the  case?  Such 
jurisdiction  is  expressly  given  to  this  court  in  cases  arising  un- 
der treaties.  If  the  executive  department  does  not  think  pro- 
per to  enter  into  treaties  or  contracts  with  the  Indian  nations, 
no  case  with  them  can  arise  calling  for  judicial  cognizance. 
But  when  such  treaties  are  found  containing  stipulations  pro- 
per for  judicial  cognizance,  I  am  unable  to  discover  any  rea- 
sons satisfying  my  mind  that  this  court  has  not  jurisdiction  of 
the  case. 

The  next  inquiry  is,  whether  such  a  case  is  made  out  in  the 
bill  as  to  warrant  this  court  in  granting  any  relief? 

I  have  endeavoured  to  show  that  the  Cherokee  nation  is  a  fo- 
reign state;  and,  as  such,  a  competent  party  to  maintain  an  ori- 
ginal suit  in  this  court  aafainst  one  of  the  United  States.  The  in- 
juries  complained  of  are  violations  coinmitted  and  threatened 
upon  the  property  of  the  complainants,  secured  to  them  by 
the  laws  and  treaties  of  the  United  States.  Under  the  consti- 
tution, the  judicial  power  of  the  United  States  extends  ex- 
pressly to  all  cases  in  law  and  equity,  arising  under  the  laws 
of  the  United  States,  and  treaties  made  or  which  shall  be 
made,  under  the  authority  of  the  same. 

In  the  case  of  Osborn  vs.  The  United  States  Bank,  9  Wheat. 
819,  the  court  say,  that  this  clause  in  the  constitution  enables  the 
judicial  department  to  receive  jurisdiction  to  the  full  extent  of 
the  constitution,  laws,  and  treaties  of  the  United  States,  when 
any  question  respecting  them  shall  assume  such  a  form  that  the 
judicial  power  is  capable  of  acting  on  it.  That  power  is  capable 
of  acting  only  when  the  subject  is  submitted  to  it  by  a  party 
who  asserts  his  rights  in  the  form  presented  by  law.  It  then 
becomes  a  case,  and  the  constitution  authorises  the  application 
of  the  judicial  power. 

The  question  presented  in  the  present  case  is,  under  the 
ordinary  form  of  judicial  proceedings,  to  obtain  an  injunction 
to  prevent  or  stay  a  violation  of  the  rights  of  property  claimed 
and  held  by  the  complainants,  under  the  treaties  and  laws  of 
the  United  States;  which,  it  is  alleged,  have  been  violated  by 
the  state  of  Georgia.  Both  the  form,  and  the  subject  matter 
of  the  complaint,  therefore,  fall  properly  under  judicial  cog- 
nizance. 

What  the  rights  of  property  in  the  Cherokee  nation   are. 


214  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
may  be  discovered  from  the  several  treaties  which  have  been 
made  between  the  United  States  and  that  nation  between  the 
years  1785  and  1819.  It  will  be  unnecessary  to  notice  many 
of  thetn.  They  all  recognize,  in  the  most  unqualified  manner, 
a  right  of  property  in  this  nation,  to  the  occupancy  at  least,  of 
the  lands  in  question.  It  is  immaterial  whether  this  interest 
is  a  mere  right  of  occupancy,  or  an  absolute  right  to  the  soil. 
The  complaint  is  for  a  violation,  or  threatened  violation,  of 
the  possessory  right.  And  this  is  a  right,  in  the  enjoyment 
of  which  they  are  entitled  to  protection,  according  to  the 
doctrine  of  this  court  in  the  cases  of  Fletcher  vs.  Peck,  6 
Cranch  87,  2  Peters's  Cond.  Rep.  308,  and  Johnson  vs.  M'ln- 
tosh,  8  Wheat.  592.  By  the  fourth  article  of  the  treaty  of 
Hopewell,  as  early  as  the  year  1785,  1  Laws  United  States, 
323,  the  boundary  line  between  the  Cherokees  and  the  citi- 
zens of  the  United  States  within  the  limits  of  the  United  States 
is  fixed. 

The  fifth  article  provides  for  the  removal  and  punishment  of 
citizens  ^of  the  United  States  or  other  persons,  not  being  In- 
dians, who  shall  attempt  to  settle  on  the  lands  so  allotted  to 
the  Indians;  thereby  not  only  surrendering  the  exclusive  poss- 
ession of  these  lands  to  this  nation,  but  providing  for  the  pro- 
tection and  enjoyment  of  such  possession.  And,  it  may  be 
remarked,  in  corroboration  of  what  has  been  said  in  a  former 
part  of  this  opinion,  that  there  is  here  drawn  a  marked  line  of 
distinction  between  the  Indians  and  citizens  of  the  United 
States;  entirely  excluding  the  former  from  the  character  of 
citizens. 

Again,  by  the  treaty  of  Holston  in  1791,  1  Laws  United 
States,  325,  the  United  States  purchase  a  part  of  the  territory 
of  this  nation,  and  a  new  boundary  line  is  designated,  and 
provision  made  for  having  it  ascertained  and  marked.  The 
mere  act  of  purchasing  and  paying  a  consideration  for  these 
lands  is  a  recognition  of  the  Indian  right.  In  addition  to 
which,  the  United  States,  by  the  seventh  article,  solemnly 
guaranty  to  the  Cherokee  nation  all  their  lands  not  ceded  by 
that  treaty.  And  by  the  eighth  article  it  is  declared,  that  any 
citizens  of  the  United  States,  who  shall  settle  upon  any  of  the 
Cherokee  lands,  shall  forfeit  the  protection  of  the  United  States; 
and  the  Cherokees  may  punish  them  or  not  as  they  shall  please. 


JANUARY  TERM  1831.  215 

[The  Cherokee  Nation  vs.  Tlie  State  of  Georgia.] 
This  treaty  was  made  soon  after  the  adoption  of  the  pre- 
sent constitution.  And  in  the  last  article  it  is  declared  that 
it  shall  take  effect,  and  be  obligatory  upon  the  contracting 
parties  as  soon  as  the  same  shall  have  been  ratified  by  the 
president  of  the  United  States,  with  the  advice  and  consent 
of  the  senate;  thereby  showing  the  early  opinion  of  the  go- 
vernment of  the  character  of  the  Cherokee  nation.  The  con- 
tract is  made  by  way  of  treaty,  and  to  be  ratified  in  the  same 
manner  as  all  other  treaties  made  with  sovereign  and  inde- 
pendent nations;  and  which  has  been  the  mode  of  negotiating 
in  all  subsequent  Indian  treaties. 

And  this  course  was  adopted  by  president  Washington  upon 
great  consideration,  by  and  with  the  previous  advice  and  con- 
currence of  the  senate.  In  his  message  sent  to  the  senate  on 
that  occasion,  he  states,  that  the  white  people  had  intruded  on 
the  Indian  lands,  as  bounded  by  the  treaty  of  Hopewell,  and 
declares  his  determination  to  execute  the  power  entrusted  to 
him  by  the  constitution  to  carry  that  treaty  into  faithful  execu- 
tion; unless  a  new  boundary  should  be  arranged  with  the  Che- 
rokees,  embracing  the  intrusive  settlements,  and  compensat- 
ing the  Cherokees  therefor.  And  he  puts  to  the  senate  this 
question:  shall  the  United  States  stipulate  solemnly  to  guaran- 
tee the  new  boundary  which  shall  be  arranged?  Upon  which 
the  senate  resolve,  that  in  case  a  new,  or  other  boundary  than 
that  stipulated  by  the  treaty  of  Hopewell  shall  be  concluded 
with  the  Cherokee  Indians,  the  senate  do  advise  and  consent 
solemnly  to  guaranty  the  same.  1  Executive  Journal,  60. 
In  consequence  of  which  the  treaty  of  Holston  was  entered 
into,  containing  the  guarantee. 

Further  cessions  of  land  have  been  made  at  different  times, 
by  the  Cherokee  nation  to  the  United  States,  for  a  considera- 
tion paid  therefor;  and,  as  the  treaties  declare,  in  acknowledge- 
ment for  the  protection  of  the  United  States  (see  treaty  of 
1798,  1  Laws  U.  S.  332):  the  United  States  always  recog- 
nizing, in  the  fullest  manner,  the  Indian  right  of  possession: 
and  in  the  treaty  of  the  8th  of  July  1817,  art.  5  (6  Laws 
U.  S.  702),  all  former  treaties  are  declared  to  be  in  full  force; 
and  the  sanction  of  the  United  States  is  given  to  the  proposi- 
tion of  a  portion  of  the  nation  to  begin  the  establishment  of 
fixed  laws  and  a  regular  government:  thereby  recognizing 
in  the  nation  a  political  existence,  capable  of  forming  an  inde- 


216  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
pendent  government,  separate  and  distinct  from  and  in  no 
manner  whatever  under  the  jurisdiction  of  the  state  of  Geor- 
giaj  and  no  objection  is  known  to  have  been  made  by  that  state. 

And,  again,  in  1819  (6  Laws  U.  S.  748),  another  treaty- 
is  made  sanctioning  and  carrying  into  effect  the  measures 
contemplated  by  the  treaty  of  1817;  beginning  with  a  reci- 
tal that  the  greater  part  of  the  Cherokees  have  expressed 
an  earnest  desire  to  remain  on  this  side  of  the  Mississippi, 
and  being  desirous,  in  order  to  commence  those  measures  which 
they  deem  necessary  to  the  civilization  and  preservation  of 
their  nation,  that  the  treaty  between  the  United  States  and 
them,  of  the  Sth  of  July  1817,  might  without  further  delay 
be  finally  adjusted,  have  offered  to  make  a  further  cession  of 
land,  &c.  This  cession  is  accepted,  and  various  stipulations 
entered  into,  with  a  view  to  their  civilization,  and  the  estab- 
lishment of  a  regular'  government,  which  has  since  been  tic- 
complished.  And  by  the  fifth  article  it  is  stipulated  that  all 
white  people  who  have  intruded,  or  who  shall  thereafter  in- 
trude on  the  lands  reserved  for  the  Cherokees,  shall  be  removed 
by  the  United  States,  and  proceeded  against  according  to  the 
provisions  of  the  act  of  1802,  entitled  "An  act  to  regulate 
trade  and  intercourse  with  the  Indian  tribes,  and  to  preserve 
peace  on  the  frontiers."  3  Laws  U.  S.  460.  By  this  act  the 
boundary  lines,  established  by  treaty  with  the  various  Indian 
tribes,  are  required  to  be  ascertained  and  marked;  and  among 
others,  that  with  the  Cherokee  nation,  according  to  the  treaty 
of  the  2d  of  October  1798. 

It  may  be  necessary  here  briefl}'^  to  notice  some  of  the  pro- 
visions of  this  act  of  1802,  so  far  as  it  goes  to  protect  the 
rights  of  property  in,  the  Indians;  for  the  purpose  of  seeing 
whether  there  has  been  any  violation  of  those  rights  by  the 
state  of  Georgia,  which  falls  properly  under  judicial  cogni- 
zance. By  this  act  it  is  made  an  offence  punishable  by  fine  and 
imprisonment,  for  any  citizen  or  other  person  resident  in  the 
United  States,  or  either  of  the  territorial  districts,  to  cross 
over  or  go  within  the  boundary  line,  to  hunt  or  destroy  the 
game,  or  drive  stock  to  range  or  feed  on  the  Indian  lands,  or 
to  go  into  any  country  allotted  to  the  Indians,  without  a  pass- 
port, or  to  commit  therein  any  robbery,  larceny,  trespass,  or 
other  crime,  against  the  person  or  property  of  any  friendly 


JANUARY  TERM  1831.  217, 

[Tiie  Cherokee  Nation  vs.  The  State  of  Georgia.] 
Indian,  which  would  be  punishable,  if  committed  within  the 
jurisdiction  of  any  state  against  a  citizen  of  the  United  States; 
thereby  necessarily  implying  that  the  Indian  territory  secured 
by  treaty  was  not  within  the  jurisdiction  of  any  state.  The 
act  further  provides,  that  when  property  is  taken  or  de- 
stroyed, the  offender  shall  forfeit  and  pay  twice  the  value  of 
the  property  so  taken  or  destroyed.  And  by  the  fifth  section 
it  is  declared,  that  if  any  citizen  of  the  United  States,  or  other 
person,  shall  make  a  settlement  on  any  lands  belonging  or 
secured,  or  guarantied,  by  treaty  with  the  United  States  to  any 
Indian  tribe;  or  shall  survey  or  attempt  to  survey,  such  lands, 
or  designate  any  of  the  boundaries,  by  marking  trees  or  other- 
wise; such  offender  shall  forfeit  a  sum  not  exceeding  one  thou- 
sand dollars,  and  suffer  imprisonment  not  exceeding  twelve 
months. 

This  act  contains  various  other  provisions  for  the  purpose  of 
protecting  the  Indians  in  the  free  and  uninterrupted  enjoyment 
of  their  lands:  and  authority  is  given  (§  16)  to  employ  the 
military  force  of  the  United  States  to  apprehend  all  persons 
who  shall  be  found,  in  the  Indian  country,  in  violation  of  any  of 
the  provisions  of  the  act;  and  deliver  them  up  to  the  civil  au- 
thority, to  be  proceeded  against  in  due  course  of  law. 

It  may  not  be  improper  here  to  notice  some  diversity  of 
opinion  that  has  been  entertained  with  respect  to  the  construc- 
tion of  the  nineteenth  section  of  this  act,  which  declares  that 
nothing  therein  contained  shall  be  construed  to  prevent  any 
trade  or  intercourse  with  the  Indians  living  on  lands  surround- 
ed by  settlements  of  citizens  of  the  United  States,  and  being 
within  the  ordinary  jurisdiction  of  any  of  the  individual 
states.  It  is  understood  that  the  state  of  Georgia  contends 
that  the  Cherokee  nation  come  within  this  section,  and  are 
subject  to  the  jurisdiction  of  that  state.  Such  a  construction 
makes  the  act  inconsistent  with  itself,  and  directly  repugnant 
to  the  various  treaties  entered  into  between  the  United  States 
and  the  Cherokee  Indians.  The  act  recognizes  and  adopts 
the  boundary  line  as  settled  by  treaty.  And  by  these  trea- 
ties, which  are  in  full  force,  the  United  States  solemnly  guar- 
anty to  the  Cherokee  nation  all  their  lands  not  ceded  to  the 
United  States;  and  these  lands  lie  within  the  chartered  limits 
of  Georgia:  and  this  was  a  subsisting  guarantee  under  the 
2  C 


218  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  Slate  of  Georgia.] 
treaty  of  1791,  when  the  act  of  1802  was  passed.     It  would 
require  the  most  unequivocal  language  to  authorise  a  construc- 
tion so  directly  repugnant  to  these  treaties. 

But  this  section  admits  of  a  plain  and  obvious  interpreta- 
tion, consistent  with  other  parts  of  the  act,  and  in  harmony 
with  these  treaties.  The  reference  undoubtedly  is  to  that 
class  of  Indians  which  has  already  been  referred  to,  consisting 
of  the  mere  remnants  of  tribes,  which  have  become  almost  ex- 
tinct; and  who  have,  in  a  great  measure,  lost  their  original 
character,  and  abandoned  their  usages  and  customs,  and  be- 
come subject  to  the  laws  of  the  state,  although  in  many  parts 
of  the  country  living  together,  and  surrounded  by  the  whites. 
They  cannot  be  said  to  have  any  distinct  government  of  their 
own,  and  are  within  the  ordinary  jurisdiction  and  government 
of  the  state  where  they  are  located. 

But  such  was  not  the  condition  and  character  of  the  Chero- 
kee nation,  in  any  respect  whatever,  in  the  year  1802,  or  at 
any  time  since.  It  was  a  numerous  and  distinct  nation,  liv- 
ing under  the  government  of  their  own  laws,  usages,  and  cus- 
toms, and  in  no  sense  under  the  ordinary  jurisdiction  of  the 
state  of  Georgia;  but  under  the  protection  of  the  United  States, 
with  a  solemn  guarantee  by  treaty  of  the  exclusive  right  to 
the  possession  of  their  lands.  This  guarantee  is  to  the  Che- 
rokees  in  their  national  capacity.  Their  land  is  held  in  com- 
mon, and  every  invasion  of  their  possessory  right  is  an  injury 
done  to  the  nation,  and  not  to  any  individual.  No  private  or 
individual  suit  could  be  sustained:  the  injury  done  being  to 
the  nation,  the  remedy  sought  must  be  in  the  name  of  the  na- 
tion. All  the  rights  secured  to  these  Indians,  under  any  trea- 
ties made  with  them,  remain  unimpaired.  These  treaties  are 
acknowledged  by  the  United  States  to  be  in  full  force,  by  the 
proviso  to  the  seventh  section  of  the  act  of  the  2Sth  May 
1830;  which  declares,  that  nothing  in  this  act  contained  shall 
be  construed  as  authorising  or  directing  the  violation  of 
any  existing  treaty  between  the  United  States  and  any  Indian 
tribes. 

That  the  Cherokee  nation  of  Indians  have,  by  virtue  of  these 
treaties,  an  exclusive  right  of  occupancy  of  the  lands  in  ques- 
tion, and  that  the  United  States  are  bound  under  their  guar- 
antee, to  protect  the  nation  in   the  enjoyment  of  such  occu- 


JANUARY  TERM  1831.  219 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
pancy;  cannot,  in  my  judgment,  admit  of  a  doubt:  and  that 
some  of"  the  laws  of  Georgia  set  out  in  the  bill  are  in  violation 
of,  and  in  conflict  with  those  treaties  and  the  act  of  1802,  is 
to  my  mind  equally  clear.  But  a  majority  of  the  court  hav- 
ing refused  the  injunction,  so  that  no  relief  whatever  can  be 
granted,  it  would  be  a  fruitless  inquiry  for  me  to  go  at  large 
into  an  examination  of  the  extent  to  which  relief  might  be 
granted  by  this  court,  according  to  my  own  view  of  the  case. 

I  certainl)^,  as  before  observed,  do  not  claim,  as  belonging 
to  the  judiciary,  the  exercise  of  political  power.  That  belongs 
to  another  branch  of  the  government.  The  protection  and  en- 
forcement of  many  rights,  secured  by  treaties,  most  certainly 
do  not  belong  to  the  judiciary.  It  is  only  where  the  rights  of 
persons  or  property  are  involved,  and  when  such  rights  can 
be  presented  under  some  judicial  form  of  proceedings,  that 
courts  of  justice  can  interpose  relief. 

This  court  can  have  no  right  to  pronounce  an  abstract  opi- 
nion upon  the  constitutionality  of  a  state  law.  Such  law  must 
be  brought  into  actual  or  threatened  operation,  upon  rights 
properly  falling  under  judicial  cognizance,  or  a  remedy  is  not 
to  be  had  here. 

The  laws  of  Georgia  set  out  in  the  bill,  if  carried  fully  into 
operation,  go  the  length  of  abrogating  all  the  laws  of  the  Che- 
rokees,  abolishing  their  government,  and  entirely  subverting 
their  national  character.  Although  the  whole  of  these  laws 
may  be  in  violation  of  the  treaties  made  with  this  nation,  it  is 
probable  this  court  cannot  grant  relief  to  the  full  extent  of  the 
complaint.  Some  of  them,  however,  are  so  directly  at  vari- 
ance with  these  treaties  and  the  laws  of  the  United  States 
touching  the  rights  of  property  secured  to  them,  that  I  can 
perceive  no  objection  to  the  application  of  judicial  relief.  The 
state  of  Georgia  certainly  could  not  have  intended  these  laws 
as  declarations  of  hostility,  or  wish  their  execution  of  them  to 
be  viewed  in'any  manner  whatever  as  acts  of  war;  but  merely 
as  an  assertion  of  what  is  claimed  as  a  legal  right:  and  in  this 
light  ought  they  to  be  considered  by  this  court. 

The  act  of  the  2d  of  December,  1S30  is  entitled  "an  act  to 
authorize  the  governor  to  take  possession  of  the  gold  and  silver 
and  other  mines  lying  and  being  in  that  section  of  the  char- 
tered limits  of  Georgia,  commonly  called  the  Cherokee  coun- 


220  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

try,  and  those  upon  all  other  unappropriated  lands  of  the 
state,  nnd  for  punishing  persons  who  may  be  found  trespassing 
on  the  mines."  The  preamble  to  this  act  asserts  the  title  to 
these  mines  to  belong  to  the  state  of  Georgia;  and  by  its  pro- 
visions twenty  thousand  dollars  are  appropi'iated,  and  placed  at 
the  disposal  of  the  governor  to  enable  him  to  take  possession  of 
those  mines;  and  it  is  made  a  crime,  punishable  by  imprisonment 
in  the  penitentiary  of  Georgia  at  hard  labour,  for  the  Cherokee 
Indians  to  work  these  mines.  And  the  bill  alleges  that  under 
the  laws  of  the  state  in  relation  to  the  mines,  the  governor 
has  stationed  at  the  mines  an  armed  force  who  are  employed 
in  restraining  the  complainants  in  their  rights  and  liberties 
in  regard  to  their  own  mines,  and  in  enforcing  the  laws  of 
Georgia  upon  them.  These  can  be  considered  in  no  other 
light  than  as  acts  of  trespass;  and  may  be  treated  as  acts  of  the 
state;  and  not  of  the  individuals  employed  as  the  agents. 
Whoever  authorises  or  commands  an  act  to  be  done  may  be 
considered  a  principal,  and  held  responsible,  if  he  can  be  made 
a  party  to  a  suit:  as  the  state  of  Georgia  may  undoubtedly 
be.  It  is  not  perceived  on  what  ground  the  state  can  claim 
a  right  to  the  possession  and  use  of  these  mines.  The  right 
of  occupancy  is  secured  to  the  Cherokees  by  treaty,  and  the 
state  has  not  even  a  reversionary  interest  in  the  soil.  It  is 
true,  that  by  the  compact  with  Georgia  of  1802,  the  United 
States  have  stipulated,  to  extinguish,  for  the  use  of  the  state, 
the  Indian  title  to  the  lands  within  her  remaining  limits,  "as 
soon  as  it  can  be  done  peaceably  and  upon  reasonable  terms." 
But  until  this  is  done,  the  state  can  have  no  claim  to  the 
lands. 

The  very  compact  is  a  recognition  by  the  state  of  a  subsist- 
ing Indian  right:  and  which  may  never  be  extinguished. 
The  United  States  have  not  stipulated  to  extinguish  it,  until 
it  can  be  done  "peaceably  and  upon  reasonable  terms;"  and 
whatever  complaints  the  state  of  Georgia  may  have  against 
the  United  States  for  the  non-fulfilment  of  this  compact,  it 
cannot  affect  the  right  of  the  Cherokees.  They  have  not  stipu- 
lated to  part  with  that  right;  and  until  they  do,  their  right  to  the 
mines  stands  upon  the  same  footing  as  the  use  and  enjoyment 
of  any  other  part  of  the  territory. 

Again,  by  the  act  of  the  21st  December  1830,    surveyors 


JANUARY  TERM  1831.  221 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
are  authorized  to  be  appointed  to  enter  upon  the  Cherokee 
-teri'itory  and  lay  it  oflf  into  districts  and  sections,  which  are 
to  be  distributed  by  lottery  among  the  people  of  Georgia;  re- 
serving to  the  Indians  only  the  present  occupancy  of  such 
improvements  as  the  individuals  of  their  nation  may  now  be 
residing  on,  with  the  lots  on  which  such  improvements  may 
stand,  and  even  excepting  from  such  reservation  improvements 
recently  made  near  the  gold  mines. 

This  is  not  only  repugnant  to  the  treaties  with  the  Chero- 
kees,  but  directly  in  violation  of  the  act  of  congress  of  1802; 
the  fifth  section  of  which  makes  it  an  oflfence  punishable  with 
fine  and  imprisonment,  to  surveyor  attempt  to  survey  or  desig- 
nate any  of  the  boundaries,  by  marking  trees  or  otherwise,  of 
any  land  belonging  to  or  secured  by  treaty  to  any  Indian  tribe: 
in  the  face  of  which,  the  law  of  Georgia  authorises  the  entry 
upon,  taking  possession  of,  and  surveying,  and  distributing  by 
lottery,  these  lands  guarantied  by  treaty  to  the  Cherokee 
nation;  and  even  gives  authority  to  the  governor  to  call  out 
the  military  force,  to  protect  the  surveyors  in  the  discharge  of 
the  duty  assigned  them. 

These  instances  are  sufficient  to  show  a  direct,  and  palpable 
infringement  of  the  rights  of  property  secured  to  the  com- 
plainants by  treaty,  and  in  violation  of  the  act  of  congress  of 
1802.  These  treaties  and  this  law,  are  declared  by  the 
constitution  to  be  the  supreme  law  of  the  land:  it  follows, 
as  matter  of  course,  that  the  laws  of  Georgia,  so  far  as  they 
are  repugnant  to  them,  must  be  void  and  inoperative.  And  it 
remains  only  very  briefly  to  inquire  whether  the  execution  of 
them  can  be  restrained  by  injunction  according  to  the  doc- 
trine and  practice  of  courts  of  equity. 

According  to  the  view  which  I  have  already  taken  of 
the  case,  I  must  consider  the  question  of  right  as  settled  in 
favour  of  the  complainants.  This  right  rests  upon  the  laws 
of  the  United  States,  and  treaties  made  with  the  Cherokee 
nation.  The  construction  of  these  laws  and  treaties  are  pure 
questions  of  law,  and  for  the  decision  of  the  court.  There  are 
no  grounds,  therefore,  upon  which  it  can  be  necessary  to  send 
the  cause  for  a  trial  at  law  of  the  right,  before  awarding  an  in- 
junction; and  the  simple  question  is,  whether  such  a  case  is 
made  out  by  the  bill,  as  to  authorize  the  granting  an  injunction. 


222  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

This  is  a  prohibitory  writ,  to  restrain  a  party  from  doing  a 
wrong  or  injury  to  the  rights  of  another.  It  is  a  beneficial  pro- 
cess, for  the  protection  of  rights;  and  is  favourably  viewed  by 
courts  of  chancery,  as  its  object  is  to  prevent  rather  than  redress 
injuries;  and  has  latterly  been  more  liberally  awarded  than 
formerly.     7  Ves.  Jun.  307. 

The  bill  contains  charges  of  numerous  trespasses  by  entering 
upon  the  lands  of  the  complainants  and  doing  acts  greatly  to 
their  injury  and  prejudice,  and  to  the  disturbance  of  the  quiet 
enjoyment  of  their  land,  and  threatening  a  total  destruction  of 
all  their  rights.  And  although  it  is  not  according  to  the 
course  of  chancery,  to  grant  injunctions  to  prevent  trespasses 
when  there  is  a  clear  and  adequate  remedy  at  law,  yet  it 
will  be  done  when  the  case  is  special  and  peculiar,  and  v/hen 
no  adequate  remedy  can  be  had  at  law,  and  particularly  when 
the  injury  threatens  irreparable  ruin.  6  Ves.  147.  7  Eden, 
307.  Every  man  is  entitled  to  be  protected  in  the  possession 
and  enjoyment  of  his  property;  and  the  ordinary  remedy  by 
action  of  trespass  may  generally  be  sufficient  to  afford  such 
protection.  But,  where  from  the  peculiar  nature  and  circum- 
stances of  the  case,  this  is  not  an  adequate  protection,  it  is  a  fit 
case  to  interpose  the  preventive  process  of  injunction.  This 
is  the  principle  running  through  all  the  cases  on  this  subject, 
and  is  founded  upon  the  most  wise  and  just  considerations; 
and  this  is  peculiarly  such  a  case.  The  complaint  is  not  of  a 
mere  private  trespass,  admitting  of  compensation  in  damages; 
but  of  injuries  which  go  to  the  total  destruction  of  the  whole 
right  of  the  complainants.  The  mischief  threatened  is  great 
and  irreparable.  7  Johns.  Cha.  330.  It  is  one  of  the  most 
beneficial  powers  of  a  court  of  equity  to  interpose  and  prevent 
an  injury,  before  any  has  actually  been  suffered;  and  this  is 
done  by  a  bill,  which  is  sometimes  called  a  bill  quia  timet.  Mit- 
ford,  120. 

The  doctrine  of  this  court  in  the  case  of  Osborne  vs.  The 
United  States  Bank,  9  Wheat.  338,  fully  sustains  the  pre- 
sent application  for  an  injunction.  The  bill  in  that  case  was 
filed  to  obtain  an  injunction  against  the  auditor  of  the  state  of 
Ohio,  to  restrain  him  from  executing  a  law  of  that  state,  which 
was  alleged  to  be  to  the  great  injury  of  the  bank,  and  to  the 
destruction  of  rights  conferred  by  their   charter.     The  only 


JANUARY  TERM  1S31.  223 

[The  Cherokee  Nation  us.  The  State  of  Georgia.] 
question  of  doubt  entertained  by  the  court  in  that  case  was,  as 
to  issuing  an  injunction  against  an  officer  of  the  state  to  restrain 
him  from  doing  an  official  act  enjoined  by  statute,  the  state 
not  being  made  a  party.  But  even  this  was  not  deemed  suf- 
ficient to  deny  the  injunction.  The  court  considered  that 
the  Ohio  law  was  made  for  the  avowed  purpose  of  expelling 
the  ba«k  from  the  state,  and  depriving  it  of  its  chartered  pri- 
vileges: and  they  say,  if"  the  state  could  have  been  made  a 
party  defendant,  it  would  scarcely  be  denied,  that  it  would 
be  a  strong  case  for  an  injunction;  that  the  application  was 
not  to  interpose  the  writ  of  injunction,  to  protect  the  bank 
from  a  common  and  casual  trespass  of  an  individual,  but  from 
a  total  destruction  of  its  franchise,  of  its  chartered  privileges, 
so  far  as  respected  the  state  of  Ohio.  In  that  case,  the  state 
could  not  be  made  a  party  according  to  the  eleventh  amend- 
ment of  the  constitution;  the  complainants  being  mere  indivi- 
duals and  not  a  sovereign  state.  But,  according  to  my  view 
of  the  present  case,  the  state  of  Georgia  is  properly  made  a 
party  defendant;  the  complainants  being  a  foreign  state. 

The  laws  of  the  state  of  Georgia  in  this  case  go  as  fully  to 
the  total  destruction  of  the  complainants'  rights  as  did  the  law 
of  Ohio  to  the  destruction  of  the  rights  of  the  bank  in  that 
state;  and  an  injunction  is  as  fit  and  proper  in  this  case  to 
prevent  the  injury,  as  it  was  in  that. 

It  forms  no  objection  to  the  issuing  of  the  injunction  in  this 
case,  that  the  lands  in  question  do  not  lie  within  the  jurisdic- 
tion of  this  court.  The  writ  does  not  operate  in  rem,  but  in 
personam.  If  the  party  is  within  the  jurisdiction  of  the  court, 
it  is  all  that  is  necessary  to  give  full  effect  and  operation  to  the 
injunction;  and  it  is  immaterial  where  the  subject  matter  of  the 
suit,  which  is  only  affiicted  consequentially,  is  situated.  This 
principle  is  fully  recognized  by  this  court  in  the  case  of 
Massie  vs.  Watts,  6  Cranch,  157;  when  this  general  rule  is 
laid  down,  that  in  a  case  of  fraud  of  trust  or  of  contract, 
the  jurisdiction  of  a  court  of  chancery  is  sustainable,  wherever 
the  person  may  be  found,  although  lands  not  within  the  juris- 
diction of  the  court  may  be  affected  by  the  decree.  And 
reference  is  made  to  several  cases  in  the  English  chancery 
recognizing  the  same  principle.  In  the  case  of  Penn  vs. 
Lord  Baltimore,  1  Ves.  444,  a  specific  performance  of  a  con- 


224  SUPREME  COURT. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
tract  respecting  lands  lying  in  North  America  was  decreed; 
the  chancellor  saying,  the  strict  primary  decree  of  a  court  of 
equity  is  in  personam,  and  may  be  enforced  in  all  cases  when 
the  person  is  within  its  jurisdiction. 
Upon  the  whole,  I  am  of  opinion, 

1.  That  the  Cherokees  compose  a  foreign  state  within  the 
sense  and  meaning  of  the  constitution,  and  constitute  a  com- 
petent party  to  maintain  a  suit  against  the  state  of  Georgia. 

2.  That  the  bill  presents  a  case  for  judicial  consideration, 
arising  under  the  laws  of  the  United  States,  and  treaties  made 
under  their  authority  with  the  Cherokee  nation,  and  which 
laws  and  treaties  have  been,  and  are  threatened  to  be  still  fur- 
ther violated  by  the  laws  of  the  state  of  Georgia  referred  to  in 
this  opinion. 

3.  That  an  injunction  is  a  fit  and  proper  writ  to  be  issued, 
to  prevent  the  further  execution  of  such  laws,  and  ought  there- 
fore to  be  awarded. 

And  I  am  authorised  by  my  brother  Story  to  say,  that  he 
concurs  with  me  in  this  opinion. 


APPENDIX  No.  I. 


The  following  is  one  of  the  opinions  referred  to  by  Mr 
Wirt  in  his  argument:  being  the  opinion  of  Chancellor 
Kent,  on  several  questions  propounded  to  him  on  behalf  of 
the  Cherokee  nation  of  Indians. 

The  following  questions  have  been  submitted  to  me  by  or 
on  behalf  of  the  Cherokee  nation  of  Indians,  for  my  opinion 
thereon,  as  counsel. 

1.  Is  the  act  of  the  legislature  of  Georgia  of  the  19th  of  De- 
cember 1829,  which  "  adds  the  territory  lying  within  the 
chartered  limits  of  Georgia,  and  now  in  the  occupancy  of  the 
Cherokee  Indians,  to  the  counties  of  Carroll,  De  Kalb,  Gwi- 
nett,  Hall,  and  Habersham,  and  extends  the  laws  of  the  state 
over  the  same,  and  annuls  all  laws  and  ordinances  made  by 
the  Cherokee  nation  of  Indians;"  a  valid  and  constitutional 
act,  within  the  purview  of  the  constitution  and  laws  of  the 
United  States? 

2.  If  not  constitutional,  can  the  Cherokee  nation  of  Indians 
maintain  a  suit  founded  on  its  violation  of  their  rights,  against 
the  state  of  Georgia,  in  the  supreme  court  of  the  United  States: 
and  can  the  court,  upon  the  institution  of  such  suit,  lawfully 
inforce  by  process  of  injunction,  the  officers  of  Georgia  from 
the  execution  of  that  law? 

3.  Is  the  construction  given  by  the.  president  of  the  United 
States  to  the  treaties  existing  between  the  United  States  and 
the  Cherokee  nation  of  Indians,  binding  and  conclusive  upon 
the  supreme  court? 

4.  If  the  Cherokees  be  not  a  foreign  state,  in  the  sense  of  the 
constitution;  can  John  Ross,  as  the  principal  chief  of  the  Che- 
rokee nation  of  Indians,  and  duly  authorised  by  them  to  re- 
present them  and  their  rights  in  the  supreme  court,  be  enti- 

2  D 


226  APPENDIX. 

[The  Cherokee  Nation  rs.  The  State  of  Georgia.] 
tied  to  sue  out  from  the  circuit  court  of  the  United  States,  pro- 
cess of  injunction  against  the  officers  of  Georgia  acting  in  exe- 
cution of  the  said  law? 

5.  Can  any  individual  of  the  Cherokee  nation  of  Indians, 
personally  affected  in  his  rights  by  the  operation  and  execu- 
tion of  the  said  law,  sue  out  such  process,  or  maintain  a  suit 
in  the  circuit  court  of  the  United  States  for  the  district  of 
Georgia,  for  a  personal  injury  produced  in  the  execution  of 
the  act  of  Georgia? 

6.  Has  the  supreme  court  appellate  jurisdiction  under  the 
twenty-fifth  section  of  the  judiciary  act  of  congress,  in  the  case 
of  a  decision  in  the  highest  court  of  law  and  equity  in  Geor- 
gia, under  the  said  act,  in  favour  of  its  validity,  as  against  the 
constitution  and  laws  of  the  United  States? 

I  shall  consider  the  questions  in  the  order  in  which  they 
have  been  stated. 

The  act  of  the  legislature  of  the  state  of  Georgia,  on  which 
the  first  question  arises,  divides  the  Indian  territory  lying 
within  its  chartftred  limits  into  five  parts  by  metes  and  bounds, 
and  annexes  the  parts  respectively  to  the  five  counties  mentioned 
in  the  act.  It  then  goes  on  and  declares  that  all  the  laws  both 
civil  and  criminal  of  the  state  are  extended  over  the  portions 
of  temtory  respectively;  and  that  all  persons  residing  within 
the  same,  shall,  after  the  1st  day  of  June  1S30,  be  subject 
to  the  operations  of  the  laws,  in  the  same  manner  as  other  citi- 
zens; that  all  laws,  ordinances,  orders  and  regulations  of  any 
kind  whatever,  made,  passed  or  enacted  by  the  Cherokee  na- 
tion of  Indians,  in  any  way  whatever,  or  by  any  authority 
whatever  of  said  tribe,  are  null  and  void,  and  of  no  efi'ect, 
as  if  the  same  had  never  existed:  and  that  it  shall  not  be  law- 
ful for  any  defendant  to  justify  under  the  same,  or  give  the 
same  in  evidence  on  the  trial  of  any  suit  whatever:  that  it 
shall  not  be  lawful  for  any  person  under  colour  of  any  rule, 
ordinance,  law  or  custom  of  the  Cherokee  nation,  to  prevent 
or  offer  to  prevent  any  Indian  residing  within  the  chartered 
limits  of  the  state,  from  selling  or  ceding  to  the  United  States, 
for  the  use  of  the  state  of  Georgia,  the  whole  or  any  part  of 
the  said  territory;  and  any  person  offending  therein,  shall  be 
deemed  guilty  of  a  high  misdemeanour      The  act  provides 


APPENDIX.  227 

[The  Cherokee  Nation  vs.  The  Slate  of  Georgia.] 
for  the  service  of  process  in  the  Indian  territory;  and  it  has 
some  other  mandatory  and  penal  provisions  in  furtherance  of 
the  general  object  of  the  law;  and  it  concludes  with  declaring 
that  no  Indian  or  descendant  of  any  Indian,  residing  with 
the  Cherokee  nation,  shall  be  deemed  a  competent  witness  in 
any  court  of  the  state  to  which  a  white  person  may  be  a  party, 
except  such  white  person  reside  in  the  Cherokee  nation. 

This  act  will  in  its  operation  go  to  the  entire  destruction  of 
the  Cherokees  in  their  national  capacity.  It  annihilates  all 
the  rights,  privileges,  powers  and  relations,  which  they  had 
before  enjoyed  as  a  distinct  and  independent  community.  As 
a  consequence  of  the  annihilation  of  the  Cherokee  nation,  the 
act  of  Georgia,  by  necessary  implication,  abrogates  all  the  trea- 
ties, laws  and  ordinances  of  the  United  States,  applicable  to 
that  nation.  It  is  an  act  of  most  momentous  import,  not  only 
to  the  Cherokees,  but  to  the  people  of  this  country;  inasmuch 
as  the  authority  which  it  assumes  and  the  precedent  which  it 
establishes,  affects  the  character  of  the  national  government, 
and  the  stability  of  its  treaties  with  all  the  various  nations  of 
Indians  throughout  the  United  States, 

The  Cherokee  nation  whom  this  act  of  the  state  of  Georgia 
thus  destroys,  had  existed  from  time  immemorial  as  a  separate 
tribe,  in  the  exercise  of  the  power  of  self  government,  and 
with  the  attributes  of  a  nation  competent  to  make  treaties, 
and  to  maintain  the  customary  relations  of  war  and  peace. 
The  Cherokees  had  been  constantly  recognized  in  their  na- 
tional character  by  the  British  and  colonial  authorities  prior , 
to  our  revolution.  The  same  character  was  conceded  to  them 
by  the  government  of  the  United  States  ever  since  we  became 
an  independent  nation.  This  appears  by  a  reference  to  the 
public  docunients,  laws  and  treaties  of  the  union.  But  the 
discussions  on  this  subject  both  in  and  out  of  congress  within 
the  last  twelve  months,  have  been  so  full  and  ample,  and  are 
so  universally  known,  that  I  need  only  allude  to  the  promi- 
nent transactions  in  support  of  this  historical  fact. 

I  begin  with  the  commencement  of  our  history  as  a  nation. 

From  the  first  formation  of  the  union  and  prior  to  the 
adoption  of  the  articles  of  confederation,  congress  treated  with 
the  Indians  spread  over  every  part  of  the  country  covered 
by  the  colonial  charters,  as  separate  and  independent  nations. 
They  sought  peace  and  friendship  with  them  on  the  footing 


228  APPENDIX. 

[The  Cherokee  Nation  vs.  The  Stale  of  Georgia.] 
of  distinct  powers;  and  appointed  commissioners  for  the  three 
Indian  departments,  to  treat  with  them  in  the  name  and  on 
the  behalf  of  the  united  colonies.  The  Cherokees  were 
mentioned  as  included  in  the  southern  department;  and  the 
language  of  congress  and  their  dealings  towards  any  one  of  the 
Indian  nations  is,  in  reference  to  their  national  character, 
equally  applicable  to  all  of  them.  Congress  addressed  the 
Delawares  and  the  chiefs  of  the  six  confederate  nations  as 
Brethren  and  Friends;  and  besought  them  to  preserve  neu- 
trality in  the  war  between  the  colonies  and  England,  as  a 
matter  in  which  they  had  no  concern.  This  was  in  the  year 
1775.  Journals  of  Congress,  vol.  1,  July  13th  and  Decem- 
ber 16th  1775. 

In  1776  congress  undertook  to  regulate  trade  with  the 
Indians,  and  to  prevent  any  "  unjust  advantage  of  their 
distress  and  intemperance;"  and  to  declare  that  no  trader 
should  go  into  the  Indian  territories  without  license.  They 
resolved  that  no  Indians  should  be  employed  as  soldiers 
in  the  united  colonies,  without  the  consent  of  the  tribes  to 
which  they  belong,  given  *'in  a  national  council  held  in  the 
customary  manner:"  and  that  disputes  between  the  white 
people  and  Indians  in  their  dealings  should  be  determined  by 
arbitrators  fairly  chosen,  "if  the  Indians  would  consent." 
They  admitted  Indian  chiefs  to  an  audience,  and  declared, 
that,  being  "  delegates  of  the  thirteen  united  colonies,  they 
were  pleased  to  see  them."  In  their  addresses  to  the  chiefs 
of  the  Six  Nations  and  of  the  Delawares  and  Shawanese;  they 
declare  their  wish  for  a  peace  and  friendship  with  them  that 
may  last  for  ever,  and  also  with  "  our  brethren  of  every  other 
Indian  nation." 

They  desire  to  see  some  of  the  wise  men  of  the  Indians  at 
their  great  council  fire,  and  which  congress  declare  they  pre- 
serve "  bright  and  clear  for  all  nations." 

They  admonish  the  Indians  that  *^  their  safety  as  nations 
depended  on  their  preserving  peace  and  friendship  with  the 
white  people  of  this  island;"  they  declare  that  they  will  take 
all  the  care  in  their  power  that  no  interruption  or  disturbance 
be  given  to  their  security  and  settlement;  and  that  none  of 
the  v»'hite  people  should  be  "  suffered  by  force  or  fraud  to 
deprive  them  of  any  of  their  land,  or  to  settle  them  without  a 
fair  purchase,  and  their  free  consent."     Congress  in  particu- 


APPENDIX.  229 

[The  Cherokee  Nation  vs.  The  Stale  of  Georgia.] 
lar  guarantied  to  the  Delawares  all  their  territorial  rights  in 
the  most  ample  manner  as  bounded  by  former  treaties.  Jour- 
nals of  Congress,  vol.  2,  January  7 — 27,  March  8,  April  10 
and  29,  May  27,  June  11,  August  19,  September  19,  and 
December  7,  1776. 

The  Cherokees  having  in  the  year  1776  committed  hostili- 
ties on  the  state  of  South  Carolina,  congress  in  1777  informed 
the  Six  Nations  that  they  had  carried  the  war  into  the  country 
of  the  Cherokees  and  fought  them,  and  that  they  had  repented 
and  congress  had  forgiven  them;  and  they  then  assure  their 
''  brothers  of  the  Six  Nations"  that  they  and  we  "  ought  to  be 
one  people,  always  ready  to  assist  and  serve  each  other." 
Journals  of  Congress,  vol.  3,  December  2,  1777.  In  January 
1778  and  1779  congress,  in  reference  to  the  Six  Nations,  de- 
clared that  those  "  Indian  nations  had  tvaged  an  unprovoked 
and  cruel  tear  against  the  United  States."  They  direct  an 
inquiry  whether  certain  Seneca  chiefs  came  among  them  "  as 
representatives  or  ambassadors  of  the  Seneca  nations,"  and 
that  though  tliey  were  disposed  to  peace  with  the  savages,  yet 
"  it  must  be  supplicated  on  the  part  of  the  enemy." 

Such  was  the  uniform  language  and  conduct  of  the  congress 
of  the  United  States  towards  the  Indian  nations,  prior  to  the 
final  ratification  of  the  articles  of  confederation.  They  de- 
clared themselves  to  be  invested  witli  the  supreme  sovereign 
power  of  war  and  peace,  and  with  the  power  of  execut- 
ing the  law  of  nations.  Journals  of  Congress,  vol.  5,  March 
6,  1779,  These  articles  prohibited  the  states  from  en- 
gaging "  in  any  war  without  the  consent  of  congress;  unless 
such  state  be  actually  invaded  by  enemies,  or  shall  have  re- 
ceived certain  advice  of  a  resolution  being  formed  by  some 
nation  of  Indians  to  invade  such  state."  The  articles  gave  to 
congress,  what  indeed  they  had  before  asserted,  the  full  and 
exclusive  right  and  power  of  determining  on  war  and  peace, 
and  entering  into  treaties  and  alliances;  and  also  the  exclusive 
power  of  ''regulating  the  trade  and  managing  all  affairs  with 
the  Indians  not  members  of  any  of  the  states,  provided  that 
the  legislative  right  of  any  state  within  its  own  limits  be  not 
infringed  or  violated."     Art.  6  and  9. 

Under  the  confederation,  congress  continued  to  treat  and 
deal  with  the  Indians  within  the  chartered  limits  of  the 


230  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

states  as  distinct,  independent  nations;  and  as  possessing  the 
sole  and  exclusive  right  to  protect  them,  and  maintain  politi- 
cal relations  with  them.  In  1781,  they  sanction  a  negotiation 
for  a  treaty  of  peace  with  the  Cherokees  and  Chickasaw  In- 
dians, as  being  means  "  to  put  a  stop  to  the  ravages  of  those 
nations."     Journals  of  Congress,  vol.  7,  168. 

On  the  21st  of  January  1785,  congress  made  a  treaty  with 
the  Wyandot,  Delaware,  Chippewa,  and  Ottawa  nations  of  In- 
dians, and  gave  them  peace.  They  had  previously  declared 
in  1783,  that  they  ivavecl  the  right  of  conquest  over  the 
northern  and  western  nations  of  Indians.  These  Indian  na- 
tions *' acknowledged  themselves  and  all  their  tribes  to  be  un- 
der the  protection  of  the  United  States,  and  of  no  other  fo- 
reign sovereign  whatever.  ^'  It  was  stipulated  that  if  any  per- 
son, not  being  an  Indian,  should  attempt  to  settle  on  any  of 
the  lands  allotted  to  the  Wyandot  and  Delaware  nations,  he 
should  forfeit  the  protection  of  the  United  States,  and  the 
Indians  miglit  punish  him  as  they  pleased;  and  if  any  In- 
dian should  commit  robbery  or  murder  on  any  citizen  of  the 
United  States,  his  tribe  should  be  bound  to  deliver  him  up  to 
the  United  States  to  be  punished.  A  treaty  of  similar  import 
and  provisions  was  made  the  31st  January  1786  with  the  Sha- 
wanoe  nation  of  Indians.  Journals  of  Congress,  vol.  10,  138; 
vol.  11,  39. 

On  the  28th  November  1785,  the  first  important  treaty  was 
made  by  the  United  States  with  the  Cherokees  at  Hopewell. 
The  treaty  declared  that  the  United  States  gave  peace  to  all 
the  Cherokees,  and  received  them  into  the  favour  and  pro- 
tection of  the  United  States.  The  Indians  acknowledged  all 
the  Cherokees  to  be  under  the  protection  of  the  United  States, 
and  of  no  other  sovereign  whatever. 

The  treaty  goes  on  and  describes  the  boundaries  to  the  hunt- 
ing grounds  between  the  said  Indians  and  the  citizens  of  the 
United  States,  within  the  limits  of  the  United  States;  and  it 
provides  for  a  mutual  exchange  of  prisoners,  and  for  the  sur- 
render of  Indians  committing  capital  crimes  upon  citizens; 
and  stipulates  to  punish  offences  against  Indians  equally  as  if 
committed  against  citizens.  The  treaty  provides,  that  if  any 
citizen  should  attempt  to  settle  upon  the  lands  allotted  to  the 
Indians,  he  should  {ovfeit  the  2}fotection  of  the  United  States, 


APPENDIX.  231 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
and  the  Indians  might  punish  him  as  they  2'>hased.  Punish- 
ment of  the  innocent,  under  the  idea  of  retaliation,  is  disal- 
lowed to  either  side,  except  where  there  is  manifest  violation 
of  the  treaty;  and  then  it  shall  be  preceded  by  a  demand  of 
justice,  and,  if  refused,  by  a  declaration  of  hostilities.  The 
treaty  finally  provides,  that  the  Cherokees  shall  have  the  right 
to  send  a  deputy  to  congress  whenever  they  think  fit. 

Similar  treaties  were  made  in  the  January  following  with 
the  Chickasaw  and  Choctaw  nations  of  Indians,  and  they  were 
all  directed  to  be  formally  entered  upon  the  journals  of  con- 
gress.    Journals  of  Congress,  vol.  1 1  - 

Afterwards,  in  17S6,  congress  resolved  that  no  citizen  or 
other  person  should  reside  among,  or  trade  with  the  Indians 
within  the  territory  of  the  United  States  without  a  license^ 
and  that  it  was  requisite  that  a  good  correspondence  be  main- 
tained between  the  citizens  of  the  United  States  and  the  several 
nations  of  Indians  in  amity  loith  them.  In  1788,  congress, 
by  proclamation,  declared  their  determination  to  pi'otect  the 
Cherokees  in  their  rights  under  the  above  treaty,  and  to  em- 
ploy force,  if  requisite,  to  drive  off  intruders  upon  their  lands 
and  hunting  grounds.  Journals  of  Congress,  vol.  11, 127;  voL 
13,  93. 

Georgia  had  been  a  member  of  the  unian  from  July  1775,, 
and  was  equally  bound  with  the  other  states  of  the  confeder- 
acy to  all  these  acts,  resolutions,  and  treaties  of  the  federal 
head.  There  had  been  a  question  raised  by  the  states  of 
North  Carolina  and  Georgia  respecting  the  construction  of  the 
sixth  article  of  the  confederation,  giving  to  congress  the  right 
to  regulate  trade  and  manage  affairs  loith  the  Indians. 
The  article  had  been  differently  construed  by  congress  and 
these  two  states,  and  the  latter  had  actually  pursued  measures 
in  conformity  to  their  own  construction:  for  North  Carolina 
had  undertaken  to  assign  lands  to  the  Cherokees,  and  Georgia 
had  proceeded  to  treat  with  the  Creeks  concerning  peace  and 
concerning  their  lands.  The  report  of  a  committee  of  con- 
,  gress  on  Indian  affairs,  consisting  of  a  member  from  the  states 
of  Massachusetts,  New  York,  Pennsylvania,  Delaware,  and 
Virginia,  had  been  made  in  1787,  in  which  it  was  stated,  that 
encroachments  and  settlements  had  been  made  upon  the  lands 
of  the  Creek  and  Cherokee  nations  by  the  people  of  Georgia 


232  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
and  North  Carolina,  under  various  pretences;  which  the  In- 
dians, tenacious  of  their  rights,  were  determined  to  oppose. 
The  report  took  notice  of  the  question,  and  of  the  construc- 
tion set  up,  and  the  acts  done  under  it  by  the  two  states;  and  it 
declared,  that  if  the  construction  of  those  states  was  right,  it 
would   leave   the  federal  powers  in  this  respect  a  mere  nul- 
lity.    The  i-eport  contained  a  clear  and  forcible  train  of  rea- 
soning in  support  of  the  construction  uniformly  given   by 
congress  to  that  article  of  the  confederation.     It  was  observed, 
that  in  forming  the  clause  in  the  articles  of  confederation,  the 
parties  to  the  federal   compact  must  have  had  some  definite 
obiects  in  view;  and  that  it  had  long  been  an  opinion  in  this 
country,  supported  by  justice  and  humanity,  that  the  Indians 
had  just  claims  to  all  lands  occupied  by,  and  not  fairly  pur- 
chased from  them;  and  that  in  managing  affairs  with  the 
independent  tribes  within  the  limits  of  the  states,  the  prin- 
cipal objects  had  been  those  of  making  peace  and  war,  pur- 
chasing certain  tracts  of  their  lands,  fixing  boundaries  between 
them  and  our  people,  and  preventing  the  latter  settling  on 
lands  in  possession  of  the  former.    That  the  powers  necessary 
to  these  objects  appeared  to  be  indimsihle,  and  that  the  par- 
ties must  have  intended  to  give  them  entire  to  the  union,  or 
else  entire  to  the  states.     These  powers,  before  the  revolution, 
were  possessed  by  the  king  and  exercised  by  him;  nor  did 
they  interfere  with  the  legislative  right  of  the  colony  within 
its  limits.     That  the  distinction  then,  and  still,  taken  was,  that 
the  laws  of  the  state  could  have  no  effect  xqjon  a  tribe  of  In- 
i  dians  on  their  lands  ivithin  Ihe  limits  of  a  stale,  so  long  as 
the  tribe  was  independent,  and  not  a  member  of  the  state;  and 
therefore  the  union  might  make  stipulations  with  any  such 
tribe  without  infringing  upon  the  legislative  right  in  question. 
The  Indian  tribes  were  justly  considered  the  common  friends 
or  enemies  of  the  United  States,  and  no  particular  state  could 
have  any  exclusive  interest  in  the  management  of  affairs  with 
any  of  the  tribes.     Journals,  vol.  12,  82. 

Thus  stood  our  relations  with  the  Indians  at  the  time  of  the 
adoption  of  the  present  constitution  of  the  United  States. 
Though  the  sixth  article  in  the  old  confederation  relative  to 
the  Indians  was  not  free  from  difficulty  and  apparent  incon- 
sistency (and  for  which  we  have  the  high   authority  of  the 


APPENDIX.  233 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
Federalist),  yet  the  practical  construction  given  to  it  by  the 
United  States,  and  generally  acquiesced  in  by  the  individual 
states,  became  authoritative  and  conclusive. 

By  Indians,  not  77iembers  of  any  state,  were  intended  all 
those  tribes  which  remained  updn  their  own  territory,  and  in 
the  exercise  of  their  original  independence;  notwithstanding 
their  lands  were  included  within  the  chartered  limits  of  the 
colonies,  and  in  some  instances  nearly  surrounded  by  white 
settlements.  It  is  well  known  that  the  colonies  claimed  under 
their  charters  to  an  indefinite  extent,  and  covered  all  the  In- 
dian territories  loithin  the  United  States:  and  the  clause  in 
question  in  the  articles  of  confederation,  must  have  had  refer- 
ence to  Indians  loithin  the  chartered  limits  of  the  states,  who 
were  not  at  the  same  time  members  of  the  state,  nor  subject  to 
its  municipal  jurisdiction;  Under  any  other  construction,  the 
clause  would  have  been  inoperative,  repugnant,  and  void. 

But  the  constitution  of  the  United  States  put  an  end  to  all 
this  difficulty,  by  dropping  the  obnoxious  proviso,  and  vesting 
in  the  government  the  exclusive  power  to  declare  war,  to 
make  treaties,  and  to  regulate  commerce  with  the  Indian 
tribes.  No  state  can  enter  into  any  treaty,  agreement  or 
compact  with  a  foreign  power. 

In  pursuance  of  these  general  powers,  congress,  as  early  as 
July  1790,  passed  a  law  to  regulate  trade  and  intercourse 
with  the  Indian  tribes;  and  it  prohibited  all  trade  and  inter- 
course with  them  without  a  license  under  the  authority  of  the 
United  States,  and  declared  void  all  sales  of  lands  by  any  tribe 
or  nation  of  Indians_ within  the  United  States,  to  any  person  or 
state,  except  under  the  like  authority. 

The  commission  of  any  crime  or  trespass  relating  to  the 
person  or  property  of  any  friendly  Indian,  upon  the  territory 
of  the  Indians;  was  made  punishable  in  like  manner  as  if  com- 
mitted against  a  citizen  within  the  jurisdiction  of  the  state  or 
district.  The  United  States  also  made  a  treaty  with  the 
Creeks  on  the  7th  of  August  1790,  in  which  they  dealt  with 
them  on  the  footing  of  a  sovereign  power. 

The  United  States  solemnly  guarantied  to  the  Creek  Nation 

all  their  lands  on  one  side  of  a  prescribed  boundary;  and  agreed, 

that  if  any  citizen  should  attempt  to  settle  on  the  Indian  lands 

he   forfeited   the   protection  of  the    United  States;   and   the 

2E 


234  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  ol  Georgia.] 

Creeks  might  punish  him  as  they  pleased.  Reprisals  for  vio- 
lence committed  on  person  or  property  were  not  permitted 
on  either  side,  until  satisfaction  had  been  demanded  and  re- 
fused. 

A  similar  treaty  was  made  with  the  Cherokees  at  Hol- 
ston  on  the  2d  July  1791,  and  it  declared  that  there  should 
be  perpetual  peace  and  friendship  between  all  the  citizens  of 
the  United  States,  and  all  the  individuals  coinjjosing  the 
Cherokee  nation.  The  Cherokees  acknowledged  the  nation 
to  be  under  the  protection  of  the  United  States,  and  oino  other 
sovereign;  and  stipulated  not  to  hold  any  treaty  with  any 
foreign  power  or  individual  state,  and  to  allow  to  the  United 
States  the  sole  and  exclusive  right  of  regulating  their  trade. 
They  stipulate  to  allow  to  the  citizens  of  the  United  States 
the  free  use  of  a  road  from  Washington  to  Mero  district,  and 
the  navigation  of  the  Tennessee  river.  The  United  States  on 
their  part  not  only  recognize  the  efficacy  of  these  concessions 
on  the  part  of  the  Indians,  by  being  parties  to  the  treaty;  but 
they  solemnly  guaranty  to  the  Cherokee  nation  all  their 
lands  not  thereby  ceded,  and  agreed  that  no  citizen  should 
hunt  or  destroy  game  on  the  Cherokee  lands,  or  go  into  their 
country  Avithout  a  passport. 

This  treaty,  like  all  other  public  treaties,  was  ratified  by  the 
president  and  senate,  and  became  thence  forward  the  supreme 
law  of  the  land. 

It  is  difficult  to  conceive  of  any  political  transaction, 
which  could  carry  with  it  more  explicit  and  conclusive 
evidence  of  the  recognition,  on  the  part  of  the  United 
States,  of  the  competence  of  the  Cherokees  to  treat  and  act  as 
a  sovereign  and  independent  nation:  a  nation  willingly  placed 
at  the  same  time  under  our  protection,  and  qualifying  their 
sovereignty  in  some  degree  for  the  sake  of  friendship  and  se- 
curity, according  to  the  usage  of  nations  where  the  strong 
and  the  weak  are  placed  side  by  side. 

Treaties  of  the  same  import  and  effect  were  not  only  made 
from  time  to  time  with  various  other  tribes  of  Indians,  but 
with  the  same  Cherokee  nation  in  1792,  1794,  1798,  1803, 
1804,  1805,  1806,    1807,  1816,  1817,  and  1819. 

In  that  of  1817,  it  was  declared,  that  the  upper  part 
of  the   Cherokee   nation   wished   to   remain   and  engage   in 


APPENDIX.  235 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
the  pursuits  of  agriculture  and  a  civilized  life,  and  to  begin 
the  establishment  of  fixed  laws,  and  a  regular  govern- 
ment; and  that  the  lower  Cherokees  wished  to  pursue  the 
hunter  life  and  emigrate  beyond  the  Mississippi.  The  treaty 
contained  cessions  which  fell  to  Georgia  and  Alabama;  and  it 
declared  that  the  treaties  heretofore  made  between  the 
Cherokee  nation  and  the  United  States,  were  to  continue 
in  full  force  luith  both  parts  of  the  nation. 

In  the  last  treaty,  in  181.9,  large  cessions  of  lands  were 
made  to  the  United  States,  and  falling  within  the  limits  of 
the  states  of  Georgia,  Alabama,  and  Tennessee.  The  preamble 
to  it  recited,  that  the  greater  part  of  the  Cherokee  nation  had 
an  earnest  desire  to  remain  on  this  side  of  the  Mississippi, 
and  to  commence  those  measures  ivhich  they  deemed  neces- 
sary to  the  civilization  and  preservation  of  the  nation.  In- 
truders from  the  white  settlements  were  to  be  removed  by 
the  United  States,  under  the  act  of  congress  of  the  30th  March 
1802. 

1  have  now  alluded  to  the  principal  documentary  testimony: 
and  from  which  I  conclude  that  the  Cherokee  nation  of  In- 
dians are  an  independent  people,  placed  under  the  protection 
of  the  United  States;  and  entitled  to  the  privilege  of  self  gov- 
ernment within  their  own  territory;  and  to  the  exclusive  use, 
enjoyment  and  government  of  their  laws,  except  so  far  as 
those  rights  have  not  been  expressly  surrendered  or  modified 
by  treaty. 

The  United  States  have  repeatedly  dealt  with  them  upon 
equal  terms  as  a  sovereign  power,  and  pledged  the  na- 
tional faith  for  their  pi'otectiou  as  a  nation,  in  their  rights 
and  property,  under  the  stipulations  contained  in  the  various 
treaties.  The  act  of  congress  of  the  30th  of  -March  1802 
remains  still  in  force;  and  that  act  renders  it  unlawful  for  any 
citizen  to  enter  upon  any  Indian  territory  to  hunt  or  destroy 
their  game;  or  to  drive  or  convey  away  their  stock  of  horses 
and  cattle;  or  range  on  any  lands  allotted  or  secured  to  them 
by  treaty;  or  to  commit  thereon  any  crime  or  trespass  upon 
their  persons  or  property;  or  to  make  any  settlement  upon  any 
of  their  lands;  or  survey  or  attempt  to  survey  the  same;  or 
to  reside  in  any  Indian  town  or  settlement,  as  a  trader,  with- 
out license.     All  conveyances  of  land  from  any  Indian  nation 


236  APPENDIX, 

[The  Cherokee  Nation  vs.  The  Stale  of  Georgia.] 
or  tribe  within  the  bounds  of  the  United  States,  are  declar- 
ed to  be  invalid,  unless  made  by  treaty,  pursuant  to  the 
constitution  and  under  the  authority  of  the  United  States, 
That  statute  described  the  boundary  line  as  established  by 
treaty  between  the  United  States  and  various  Indian  tribes; 
and  it  included,  as  being  within  Indian  territory,  the  lands 
now  claimed  by  Georgia  and  occupied  by  the  Cherokees.  The 
act  of  the  3d  of  March  1817,  relative  to  the  punishment  of 
crimes  and  offences  committed  within  the  Indian  boundaries, 
declared  that  the  act  was  not  to  extend  to  any  offence  com- 
mitted by  one  Indian  against  another  within  any  Indian 
boundary. 

The  territory  and  sovereignty  of  the  Cherokees  have  been 
transmitted  to  them  from  their  ancestors.  They  have  been  in 
the  enjoyment  of  both,  from  the  first  settlement  of  Georgia; 
with  the  approbation  of  the  whites,  and  without  any  known 
conflicting  claim  against  them.  No  better  right  or  title  to  ter- 
ritory and  national  sovereignty  can  exist,  either  by  the  law  of 
nature  or  nations.  They  have  never  been  conquered.  The 
United  States  have  been  engaged  in  war  with  them;  but  they 
never  claimed  either  the  territory  or  sovereignty  of  the  Che- 
rokees as  conquerors.  They  have  disclaimed  any  such  pre- 
tension; and  have  made  many  treaties  of  peace  and  friendship 
with  the  Cherokees.  Their  sovereignty  now  rests  upon  the 
public   conventional  law  of  the  union. 

The  chartered  limits  of  the  individual  states  have  never  been 
construed  by  the  United  States,  in  any  period  of  its  history, 
to  confer  jurisdiction  over  territories  contained  within  those 
limits;  and  claimed,  defined,  and  occupied,  not  by  wandering 
savages,  as  in  New  South  Wales,  but  by  tribes  of  Indians 
acting  regularly  in  a  national  capacity. 

The  chartered  limit  gave  only  a  right  of  preemption  of  the 
soil  after  the  Indian  title  had  been  fairly  extinguished;  with 
the  consent  of  the  tribe  given  in  a  national  capacity,  and 
negotiated  under  the  authority  of  the  United  States.  The 
chartered  limit  and  claim  were  subordinate  to  the  Indian  title 
and  sovereignty,  and  conferred  no  jurisdiction  repugnant 
thereto.  This  seems  to  be  the  true  and  acknowledged  doc- 
trine; for  it  is  supported  by  all  the  acts  of  government,  and 
by  the  authority  and  sanction  of  our  most  distinguished  states- 
men. 


APPENDIX.  237 

[The  Cherokee  Nation  vs.  Tlie  State  of  Georgia.] 

As  between  the  crown  and  its  subjects,  before  the  revolu- 
tion, and  as  between  the  state  and  its  citizens,  since  our  inde- 
pendence; the  theory  is  different,  so  far  as  that  the  seisin  of 
the  government,  under  its  national  boundary  or  chartered 
limits,  cannot  be  permitted  to  be  drawn  in  question.  But 
this  fiction  of  law,  and  this  seisin,  have  never  been  put  for- 
ward (except  it  be  recently  by  Georgia),  to  any  Indian  nation, 
as  giving  any  right  or  title  to  their  territory,  othe?'  than  the 
right  of  preemption  as  against  other  civilized  nations. 

The  act  of  the  legislature  of  New  York,  in  1822  (and 
which  has  recently  been  incorporated  into  the  new  revised 
statute  code),  asserting  exclusive  criminal  jurisdiction  over 
the  Senecas  and  other  tribes  of  Indians  within  the  limits  of 
the  states,  even  as  to  crimes  and  offences  committed  by  Indians 
against  each  other,  upon  their  oivn  territory,  is  to  be  cited 
as  an  anomalous  case;  which  cannot  easily  be  reconciled  to 
sound  principles,  or  to  the  authority  of  the  act  of  congress  of 
1802,  or  to  the  treaties  made  with  the  Six  Nations.  It  can- 
not be  justified,  unless  it  be  upon  the  ground  that  the  Indians 
in  New  York  have  ceased,  by  their  paucity  of  numbers  and  by 
their  insignificance,  to  exist  in  a  distinct  national  capacity, 
regularly  exercising  self  government. 

Thismay,  perhaps,  bethecase  with  the  Mohawks, Tuscaroras, 
Onondagas,  and  Cayugas,  but  I  think  it  could  not  be  so  with  the 
Senecas;  and  the  act  was  carried  to  an  unjustifiable  extent  upon 
strict  principles  of  national  law.  It  came  incidentally  into  view 
in  the  case  of  Goodell  vs.  Jackson  20  Johns.  Rep.  716;  and 
it  was  supposed,  in  the  opinion  then  delivered  in  the  court  of 
errors,  to  be  warranted  upon  principles  of  necessity  and  hu- 
manity, and  to  prevent  gross  and  barbarous  punishments  in 
the  presence  of  our  own  mild  and  Christian  people.  But 
these  principles  will  not  sustain  it  when  tested  by  the  laws  and 
treaties  of  the  United  States;  and  however  just  and  merito- 
rious the  intention  of  the  law  giver  was,  in  that  particular 
case,  I  am  now  satisfied,  upon  a  more  thorough  consideration 
of  the  subject,  that  the  statute  alluded  to  could  not  endure  a 
judicial  scrutiny,  if  the  constitution,  laws  and  treaties  of  the 
union  were  brouo;ht  to  bear  against  it. 

The  compact  made  between  the  United  States  and  the  state 
of  Georgia,  tiic  24th  of  April  1802,  docs  not  appear  to  me  lo 


238  APPENDIX. 

[The  Cherokee  Nation  vs.  The  Stale  of  Georgia.] 
affect  the  present  question.  In  that  contract  the  United  States 
engaged  to  extinguish,  for  the  use  of  Georgia,  as  ear/y  as  the 
sa?72e  could  be  peaceably  obtained  on  reasonable  terms,  the 
Indian  title  to  the  county  of  Talassee,  and  to  all  the  other 
lands  within  the  state  of  Georgia;  and  the  United  States  ceded 
to  Georgia  all  her  claim  to  the  jurisdiction  and  soil  of  any 
lands  within  the  chartered  limits  of  Georgia,  and  east  of  the 
line  between  Alabama  and  Georgia.  This  compact  could  not 
impair  the  national  character  or  rights  of  the  Cherokees,  who 
were  no  parties  to  it;  nor  oblige  them  to  part  with  any  portion 
of  their  territory  without  their  free  and  fair  consent. 

But  this  act  of  cession  on  the  part  of  Georgia  contains  a 
strong  affirmative  argument  in  favour  of  the  Indian  claims, 
and  a  sanction  of  their  rights  by  Georgia  herself. 

The  cession  is  made  by  the  state  of  Georgia  to  the  jurisdic- 
tion and  soil  of  the  Indian  lands,  within  the  chartered  limits 
of  Georgia,  lying  west  of  the  Catahouchee  river,  compris- 
ing most  part  of  the  territory  of  the  present  states  of  Alabama 
and  Mississippi;  and  it  was  made  upon  the  express  condition, 
not  only  that  the  United  States  should  extinguish  the  Indian 
title  to  the  lands  lying  within  the  state  of  Georgia  in  the  man- 
ner above  mentioned,  but  that  the  ceded  territory  should  form 
a  state,  and  be  admitted  into  the  union  "  on  the  same  condi- 
tions and  restrictions,  with  the  same  privileges,  and  in  the 
same  manner,"  as  was  provided  by  the  ordinance  of  congress 
of  13th  July  1787,  with  the  exception  only  of  the  article 
which  forbids  slavery.  Now,  if  we  turn  to  the  ordinance  to 
which  the  high  contracting  parties  had  reference,  we  find, 
that,  by  the  third  article,  the  following  provision  is  declared 
among  others  to  be  one  of  the  articles  of  compact  between  the 
original  states,  and  the  people  and  states  in  the  said  territory 
(being  the  territory  of  the  United  States  north  west  of  the 
river  Ohio),  and  for  ever  to  remain  unalterable.  The  provi- 
sion is  as  follows,  to  wit,  "  the  utmost  good  faith  shall  al- 
ways be  observed  towards  the  Indians;  their  lands  and  pro- 
perty shall  never  be  taken  from  them  without  their  consent; 
and  in  their  property,  rights,  and  liberty,  they  shall  never  be 
invaded  or  disturbed,  unless  in  just  and  lawful  wars  author- 
ized by  congress;  but  laws  founded  in  justice  and  humanity 
shall  from  time  to  time  be  made,  for  preventing  wrongs  being 


APPENDIX.  239 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

done  to  them,  and  for  preserving  peace  and  friendship  with 
them." 

This  compact,  with  these  provisions  incorporated  in  this 
manner  into  it,  was  ratified  by  the  legislature  of  Georgia  June 
16th,  1802;  and  it  would  appear  to  follow  that  the  state  of 
Georgia  is  estopped  by  her  solemn  and  deliberate  act,  done 
in  the  face  of  the  union,  from  questioning  the  rights  and 
liberties  of  the  Cherokees,  as  now  by  them  declared  and 
asserted . 

My  opinion  on  the  first  question  accordingly  is,  that  the 
act  of  Georgia  is  repugnant  to  the  treaties  made  between  the 
United  States  and  the  Cherokees,  and  to  the  act  of  congress 
of  1802  regulating  intercourse  with  the  Indian  tribes,  and  to 
the  constitution  of  the  United  States  authorizing  that  act  and 
those  treaties:  and  the  conclusion  appears  to  me  to  follow,  that 
it  is  an  unconstitutional  act,  and  one  which  the  courts  of  jus- 
tice of  the  United  States  would  not  sustain.  I  give  this  opi- 
nion with  diffidence,  because  I  know  it  to  be  arrayed  against 
very  high  and  distinguished  authority:  but  it  is  nevertheless 
founded  on  my  clear  and  decided  convictions,  and  it  is 
called  for  in  the  course  of  my  professional  duty,  and  under 
circumstances  in  which  I  do  not  feel  at  liberty  to  withhold  it. 
The  second  question  stated  to  me  is,  whether  the  Chero- 
kees can  maintain  a  suit  in  the  supreme  court  of  the  United 
States  against  the  state  of  Georgia,  founded  on  a  violation  of 
their  rights  under  the  operation  of  the  act  of  that  state;  and 
whether  process  of  injunction  could  issue  in  that  case  to  stay 
the  execution  of  the  statute? 

The  judicial  power  of  the  United  States  undoubtedly  reaches 
the  case;  for  it  "  extends  to  all  cases  in  law  and  equity  under 
the  constitution,  the  laws  and  treaties  of  the  union." 

But  the  great  question  is,  whether  the  supreme  court  pos- 
sesses or^mcc/ jurisdiction,  so  as  to  sustain  a  suit  commenced 
there  by  the  Cherokee  nation  in  the  name  of  "  the  head  men 
and  warriors  of  all  the  Cherokees"  against  the  state  of  Georgia. 
The  judicial  power  extends  originally  to  controversies  "be- 
tween a  state,  and  foreign  states,  citizens  or  subjects."  In  those 
cases  in  which  "  a  state  shall  be  a  party,"  the  supreme  court 
had,  and  still  has  original  jurisdiction.     But  by  the  amend- 


240  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
ment  to  the  constitution,  the  judicial  power  does  not  extend 
to  any  suit  in  law  or  equity  commenced  or  prosecuted  against 
one  of  the  United  States  by  citizens  of  another  state,  "or  by 
citizens  or  subjects  of  any  foreign  state:"  leaving  thereby  the 
judicial  power  as  it  originally  stood  in  respect  to  "controver- 
sies between  a  state  and  foreign  states." 

The  new  inhibition  to  sue  a  state,  only  applies  to  the  citi- 
zens or  subjects  of  foreign  states;  and  does  not  extend  to  the 
foreign  state  itself. 

The  case  would  appear  then  to  resolve  itself  into  the  single 
point,  whether  the  Cherokee  nation  of  Indians  be  a  foreign 
state,  within  the  purview  of  the  judicial  branch  of  the  constitu- 
tion of  the  United  States;  and  can  a  foreign  state  sue  one  of 
the  United  States. 

There  is  no  difficulty,  as  the  case  appears  to  me,  in  declaring 
the  Cherokees  to  be  a  state,  within  the  meaning  of  the  term 
used  in  that  part  of  the  constitution.  A  state  means  a  com- 
plete or  self  sufficient  body  of  persons,  united  together  in  one 
community  for  the  defence  of  their  own  rights,  and  to  do 
right  to  foreigners.  Every  state  has  "  itsafiairs  and  interests; 
it  deliberates  and  takes  resolutions  in  common,  and  becomes  a 
moral  person  having  an  understanding  and  a  will  peculiar  to 
itself:  and  is  susceptible  of  obligations  and  laws."  This  defi- 
nition of  a  state  or  body  politic  is  independent  of  the  par- 
ticular form  of  its  government,  and  applies  equally  to  every 
people  who  act  for  themselves,  whatever  may  be  the  structure 
of  their  civil  policy,  or  into  whatever  hands  they  may  de- 
posit their  sovereign  power.  Grotius,  b.  1,  c.  1,  §  14. 
Ibid.  b.  3,  c.  3,  §  2.  Burlemaqui,  vol.  2,  part  1,  ch.  4,  §  9. 
Vattel,  b.  1,  ch.  1. 

It  would  appear  to  me  that  the  Indian  nations  arc  to  be  con- 
sidered not  only  as  states,  but  q.s  foreign  states;  because  they 
do  not  constitute  any  ingredient  or  essential  part  of  our  own 
body  politic. 

Every  other  state  or  body  politic,  not  within  the  action  of 
the  will  and  power  of  our  government,  legally  speaking  stands 
in  a.  foreign  relation  to  it;  and  relatively  considered  must  be 
a  foreign  power.  Foreign  states,  foreign  powers,  foreign  na- 
tions, are  terms  in  the  constitution  of  plain  and  familiar  import; 


APPENDIX.  241 

[The  Cherokee  Nation  vs.  The  State  of  Georgia,] 
and  mean  states  and  powers  not  within  the  domestic  compact, 
nor  subject  to  its  control.  It  is  best  and  safest  to  give  to  such 
words,  which  are  not  strictly  technical,  their  plain  and  popu- 
lar meaning.  We  are  most  likely  in  that  way,  and  with  that 
rule  of  interpretation,  to  arrive  at  the  intention  of  the  instru- 
ment. The  Indian  powers  fall  within  the  ordinary  accepta- 
tion of  the  term,  foreign  states.  They  do  not  constitute  part 
and  parcel  of  our  internal  or  domestic  government.  They 
are  foreign  to  us  in  point  of  fact,  for  we  have  uniformly  dealt 
with  them  as  independent  and  alien  powers.  The  laws  and 
treaties  which  we  have  been  considering  abundantly  estab- 
lish this  fact.  They  are  foreign  states  in  the  purview  of 
national  law;  for  they  have  the  essential  attributes  of  nations, 
and  make  war  and  peace,  and  negotiate  and  establish  treaties, 
and  contract  alliances  in  the  style  and  solemnity,  and  effi- 
cacy of  independent  states. 

If  one  of  the  United  States  violates  the  treaties  of  the  nation 
made  with  the  Indian  tribes,  or  the  security  afforded  to  them 
under  the  intercourse  act  of  1802,  by  attacking  their  national 
privileges  and  their  rights  of  property,  there  must  be  a  civil 
remedy  within  the  contemplation  of  law;  or  the  government 
would  be  lamentably  imperfect  in  its  organization  and  com- 
petence. It  would  be  destitute  of  the  ordinary  means  of  self- 
preservation. 

The  grievance  appears  to  constitute  a  case  falling  with- 
in the  reason  of  the  constitutional  jurisdiction  given  to  the 
judicial  power.  It  involves  the  peace  of  the  union,  and  im- 
plicates its  faith  and  character. 

The  national  government  cannot  vindicate  its  authority 
over  a  member,  in  any  way  so  conciliatory  and  so  effectual,  as 
by  the  gentle  interposition  and  reasoning  powers  of  the  courts 
of  justice.  The  constitution  evidently  intended  to  reach  and 
cover  all  controversies  between  two  or  more  states,  or  be- 
tween one  of  them  and  a  foreign  state,  by  this  pacific  and  im- 
partial mode  of  adjustment;  and  controversies  between  the 
states  and  Indian  tribes  are  within  the  reason  and  policy  of 
the  provision. 

I  do  not  perceive  any  objection  to  the  construction  which  I 
now  assume,  arising  from  that  part  of  the  constitution  which 
gives  power  to  congress  to  '^  regulate  commerce  with  foreign 
2F 


242  APPENDIX. 

[The  Cherokee  Nation  vs.  The  Slate  of  Georgia.] 
nations,  and  among  the  several   states,  and  with  the  Indian 
tribes." 

If  the  Indian  tribes  are  not  Joreign  nations  within  the  in- 
tendment of  that  clause,  it  does  not  follow  that  they  are  not 
so  in  another  part  of  the  instrument  giving  judicial  jurisdiction 
to  controversies  between  a  state  and  foreign  states.  The  con- 
stitution varies  its  phraseology  in  different  parts  of  it  when 
speaking  of  external  authorities.  In  one  place  they  are  termed 
Joreign  nations,  in  another  foreign  states,  and  in  another 
foreign  powers;  and  the  construction  in  each  case  will  depend 
in  some  degree  on  the  context  and  the  subject  matter. 

In  the  grant  of  judicial  powers  the  term  foreign  states 
stands  naked  without  any  qualification  accompanying  it  as  to 
Indian  tribes;  and  it  is  therefore  to  be  taken  in  its  largest 
sense,  and  with  reference  to  the  great  principle  of  constitu- 
tional policy  in  view,  and  which  was  the  preservation  of 
the  peace,  and  the  maintenance  of  the  faith  and  justice  of  the 
union. 

The  clause  in  the  constitution  which  was  just  cited  may 
have  contained  the  additional  grant  of  power,  to  regulate 
commerce  ivith  'the  Indian  tribes,  out  of  abundant  caution, 
and  to  prevent  any  possible  doubt  of  the  application  to  them 
of  the  power  to  regulate  commerce  with  foreign  nations. 
These  last  words,  I  apprehend,  would  have  reached  the  case  of 
the  Indians,  but  the  constitution  in  several  other  instances  has 
gone  into  a  like  specification  of  powers,  which  were  by  neces- 
sary implication  included  in  the  more  general  grant.  Thus, 
for  instance,  power  is  given  to  congress  to  declare  war;  and,  it 
is  immediately  subjoined,  and  grant  letters  of  tnarqiie  and 
reprisal.  They  have  power  to  coin  money,  and  regulate  the 
value  thereof  They  have  power  to  raise  armies,  and  provide 
and  maintain  a  navy;  and  it  is  immediately  subjoined,  «nc? 
make  rules  for  the  government,  (and  not  government  only, 
but  it  is  added)  and  regulation  of  the  land  and  naval 
forces.  These,  and  other  instances  which  might  be  enume- 
rated, are  suiEcient  to  show  that  we  ought  not  to  be  deterred, 
in  reference  to  judicial  powers,  from  the  application  of  the 
term  foreign  states  to  the  Indian  tribes,  merely  because  in 
another  part  of  the  instrument  on  a  different  subject,  after  the 
grant  of  the  power  to  regulate  commerce  with  foreign  nations, 
it  is  added  and  loith  the  Indian  trihes. 


APPENDIX.  243 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
There  does  not  appear  to  be  any  reasonable  ground  to  doubt 
of  the  competence  of  a  foreign  state  under  the  provision  in 
the  constitution,  to  sue  one  of  the  states  of  the  union.  The 
supreme  court  has  original  jurisdiction  where  '<  a  state  shall 
be  a  party,"  and  this  applies  as  well  to  a  state  in  the  character 
of  defendant  as  of  plaintiff.  This  was  so  explained  and  de- 
clared by  the  supreme  court  in  the  case  of  Chisholm  vs.  Geor- 
gia, 2  Dallas,  419,  and  which  I  deem  a  sound  and  incontro- 
vertible authority  for  the  point. 

As  an  abstract  proposition,  and  a  constitutional  princi- 
ple, it  may  safely  be  laid  down  that  a  foreign  state  may 
sue  one  of  the  United  States.  In  the  case  from  Dallas, 
it  was  assumed  by  two  of  the  court  (Justices  Blair  and 
Cushing),  to  be  a  clear  proposition;  and  it  was  not  ques- 
tioned by  any  of  them.  But  in  the  ordinary  course  of  things 
the  occurrence  may  never  take  place;  for  the  constitution 
prohibits  any  state  from  entering  into  any  "agreement 
or  compact  with  a  foreign  power."  The  Indian  cases  are  those 
only  in  which  the  casus  fcederis  is  likely  to  occur;  and  in 
those  cases  the  capacity  of  that  feeble  and  unfortunate  race  of 
primeval  American  powers,  to  seek  for  redress  under  the  pro- 
tecting arm  of  the  constitution  against  the  overhearing  supe- 
riority of  their  white  neighbours;  seems  to  be  peculiarly  desi- 
rable, and  exalts  the  dignity  of  the  provision. 

If  the  supreme  court  has  original  jurisdiction  in  the  case,  it 
appears  to  me  to  follow  of  course  that  they  may  award  an  in- 
junction on  a  bill  filed  by  the  Cherokee  nation,  and  stating 
their  right  and  title.  The  process  would  go_  to  restrain  the 
officers  of  Georgia  under  the  law  of  that  state,  from  executing 
any  process  within  the  Indian  territory,  incompatible  with 
their  rights  and  privileges  as  heretofore  enjoyed  and  recognized 
by  the  laws  and  treaties  of  the  United  States.  The  injunc- 
tion could  be  provisional  in  the  first  instance,  ox  pendente  lite; 
and  if  the  decree  should  be  against  the  validity  of  the  statute, 
a  permanent  injunction  would  be  the  effective  part  of  the  final 
decree.  The  equitable  is  coextensive  with  the  legal  juris- 
diction of  the  court  in  all  cases  arising  under  the  constitution, 
the  laws  and  treaties  of  the  union;  and  the  process  of  injunc- 
tion might  become  indispensable  to  prevent  irreparable  mis- 
chief or  the  destruction  of  the   rights  and  privileges  of  the 


244  APPENDIX. 

tThe  Cherokee  Nation  vs.  The  State  of  Georgia.] 
Cherokees  pending  the  suit,  and  of  which  rights  and  privileges 
.  they  are  in  the  actual  possession. 

Assuming  that  the  court  has  jurisdiction  to  sustain  a 
bill,  all  the  remedies  suitable  to  the  case,  and  founded  on 
known  and  settled  principles  of  American  equity  juris- 
prudence would  seem  necessarily  to  exist,  and  to  be  applicable 
to  the  due  administration  of  justice  in  such  a  suit.  The  pro- 
cess operates  in  'personam;  and  if  the  court  possesses  jurisdic- 
tion over  the  case,  I  apprehend  there  could  be  no  difficulty  in 
restraining  acts  of  the  Georgia  officers  over  the  rights  of  the 
complainants  within  their  own  territory. 

A  court  of  equity  does  not  regard  the  situation  of  the  sub- 
ject matter  in  dispute,  but  considers  only  the  equities  arising 
from  the  acts  of  the  parties.  It  has  enjoined  a  party  from 
proceedings  in  a  foreign  court.  Wharton  vs.  May,  9  Vesey, 
27.     Kennedy  2;*.  Cassilis,  cited  in  Eden  on  Injunctions,  163. 

Is  the  construction  given  by  the  president  of  the  United 
States  to  the  treaties  existing;  between  the  United  States  and 
the  Cherokee  nation  of  Indians,  binding  and  conclusive  upon 
the  supreme  court.'' 

It  is  understood  that  the  president  has  communicated  to  the 
Cherokees  as  the  sense  of  the  executive  department  of  the  go- 
vernment, that  their  claim  to  the  protection  of  the  United 
States  against  the  operation  of  the  statute  of  Georgia,  cannot 
be  recognized.  I  would  observe,  with  great  respect  and  sub- 
mission, that  I  cannot  perceive  upon  what  sound  principle  the 
president  of  the  United  States  has  formed  the  opinion  that  he 
was  no  longer-  bound  to  cause  to  be  executed  the  treaties 
of  the  United  States  with  the  Cherokees,  or  the  Indian  inter- 
course act  of  1802 .  If  the  Cherokees  are  to  be  put  out  of  the 
protection  of  the  United  States,  as  against  tlie  operation  of  the 
statute  of  Georgia,  they  are  to  be  out  of  the  protection  both 
of  the  treaties  and  the  act  of  congress.  The  president  is 
"vested  with  the  executive  power;"  and  he  is  charged  with 
the  duty  to  ''take  care  that  the  laws  be  faithfully  executed." 

The  acts  of  congress,  and  all  treaties  duly  made  and  pro- 
mulgated, are  the  supreme  law  of  the  land;  and  it  is  not  in 
the  power  of  any  single  state,  by  any  law  or  ordinance  of  its 
own,  to  abrogate  or  impair  the  binding  obligation  of  the  para- 
mount laws  and  treaties  of  the  union.     This  may  be  consid- 


APPENDIX.  245 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
ered  to  be  a  settled  axiom  in  our  constitutional  jurisprudence. 
A  contrary  doctrine  would  go  at  once  to  the  annihilation  of 
the  national  authority,. and  the  eventual  dissolution  of  the  con- 
federacy. If  the  provisions  of  the  intercourse  act  of  1802 
were  valid,  and  if  the  treaties  with  the  Cherokees  were  bind- 
ing prior  to  the  act  of  Georgia  in  1829,  they  must  be  equally 
so  after  it  had  passed;  for  it  is  impossible  to  suppose  that 
the  existence  or  legal  efficacy  of  either  the  one  or  the  other 
depended  upon  the  will  and  pleasure  of  a  single  state.  The 
executive  power,  in  the  exercise  of  its  functions,  may  often 
be  obliged  to  judge  in  the  first  instance  of  the  extent  of  its 
duty  under  any  given  law;  but  it  always  judges  at  its  peril, 
and  the  law  of  the  land  is  and  must  be  sovereign  over  all  the 
officers  of  the  government;  and  neither  the  executive  nor  judi- 
cial department  possesses  any  dispensing  power.  Neither  of 
them  can  set  aside  a  treaty,  or  dispense  with  its  provisions, 
any  more  than  with  a  statute  law.  They  are  both  equally 
laws  of  imperative  obligation,  though  the  former  is  the  para- 
mount law,  and  the  most  sacred  in  its  nature;  for  it  involves 
in  its  observance  a  breach  of  peace,  and  the  good  faith  of  the 
nation.  The  judiciary  is  the  regular  organ  of  the  constitu- 
tion, for  construing  laws  and  judging  of  their  extent  and  force; 
and  the  executive  capacity,  on  this  point,  arises  only  inciden- 
tally in  the  due  course  of  executive  duty.  The  judicial  power 
is  a  distinct  and  independent  branch  of  the  government,  cre- 
ated and  set  apart,  and  clothed  with  peculiar  qaalifications  for 
the  very  purpose  of  declaring  the  law  in  all  questionable  and 
controverted  cases.  Its  power  and  functions  cannot  be  affect- 
ed or  impaired  by  any  interpretation  of  statutes  or  treaties, 
or  by  any  opinion  as  to  their  force  and  application  which  the 
executive  power  may  have  thought  it  expedient  or  necessary 
to  form. 

I  am  therefore  of  opinion  that  the  president's  construction 
of  the  treaties  with  the  Cherokees  is  not  conclusive  or  bind- 
ing upon  the  supreme  court. 

If  the  Cherokees  be  not  a  foreign  state,  in  the  sense  of 
the  constitution,  can  John  Ross,  or  the  principal  chief  of  the 
Cherokee  nation,  and  duly  authorised  by  them  to  represent 
them  and  their  rights,  be  entitled  to  sue  out  from  the  circuit 
court  of  the  United  States  process  of  injunction  against  the 


246  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
officers  of  Georgia  acting  in   execution   of  the   statute   of 
Georgia? 

After  the  conclusion  to  which  I  have  arrived  in  considerino; 
the  first  question  (and  which  is  the  great  and  leading  question 
in  the  case),  I  have  no  difficulty  in  the  opinion  that  John 
Ross  is  to  be  deemed  an  alien,  even  though  the  Cherokee  na- 
tion should  not  be  deemed  ^foreign  state,  in  the  sense  of  the 
constitution. 

The  Cherokees  are  certainly  not  to  be  considered  as  citizens 
of  the  United  States,  and  they  have  never  been  recognized  as 
such,  or  deemed  to  possess  any  of  the  requisite  qualifications 
of  citizens.  They  have  never  been  claimed  to  owe  us  indi- 
vidual allegiance.  All  the  documentary  and  recorded  evi- 
dence, embodied  in  the  history  of  the  United  States,  and  the 
transactions  of  their  government,  applicable  to  the  question, 
clearly  shows  that  the  Cherokees  have  been  regarded  and 
dealt  with  as  a  race  of  men  distinct  from  the  citizens  of  the 
United  States;  and  while  within  their  own  territory,  not  sub- 
ject to  our  municipal  laws,  but  owing  allegiance  to  their  own 
tribe.  The  statute  of  Georgia  could  not  make  them  citizens, 
even  if  it  were  in  other  respects  unexceptionable;  for  it  be- 
longs exclusively  to  the  congress  of  the  United  States  to 
prescribe  the  rule  of  naturalization:  and  no  alien  can  be  made 
a  citizen  but  in  the  mode  directed  by  the  act  of  congress. 

That  being  the  case,  a  Cherokee  Indian  is  entitled  to  sue  in 
the  circuit  court  of  the  United  States,  equally  with  any  other 
alien;  and  though  he  cannot  sue  the  state  of  Georgia  as  a  state, 
he  can  sue  its  officers  in  their  individual  character,  for  doing 
acts  that  will  sustain  a  suit,  though  those  acts  be  in  pursuance 
of  and  in  execution  of  a  state  law  held  to  be  invalid.  The 
court  simply  inspect  the  record  to  determine  whether  the 
party  be  a  state  or  an  individual,  and  the  case  of  Osborn  vs.  The 
Bank  of  the  United  States,  9  Wheat.  73S,  proves  that  the 
courts  of  the  United  States  have  jurisdiction  on  behalf  of 
an  individual  against  state  officers,  though  the  officers  were 
acting  under  the  direction  of  a  state  law. 

If  Ross  hold  any  legal  interest  as  trustee  for  the  Chero- 
kees, he  is  competent  to  sue  even  in  a  court  of  law,  in  his 
own  name,  and  in  his  own  alien  character,  and  even  without 


APPENDIX.  247 

[The  Cherokee  Nation  va.  The  State  of  Georgia.] 
reference  to  the  character  of  his  cestui  que  trusts.  4  Cranch, 
306,  308.  5  Cranch,  91,  303.  8  Wheat.  642.  But  in  equity 
he  can  file  his  bill  by  and  on  behalf  of  himself  and  the  residue 
of  the  Cherokee  nation,  and  duly  authorised  for  that  purpose 
as  their  head  and  representative,  and  be  entitled  to  obtain  any 
process  that  the  merits  of  the  case  in  the  bill  should  warrant. 
It  appears  to  me  that  no  difficulty  could  arise  in  consequence 
of  his  appearing  to  act  for  himself  and  on  behalf  of  the  residue 
of  the  tribe,  under  due  authorization.  The  character  of  a 
court  of  equity,  and  the  free  and  liberal  nature  of  its  pleadings 
would  not  suffer  any  technical  scruple  to  be  interposed. 

Can  any  individual  of  the  Cherokee  nation,  personally 
affected  in  his  rights  by  the  operation  and  execution  of  the 
act  of  Georgia,  sue  out  such  process,  or  maintain  a  suit  for  a 
personal  injury  produced  in  the  execution  of  the  act  of  Geor- 
gia; in  the  circuit  court  of  the  United  States  for  the  district  of 
Georgia? 

This  question  has  been  essentially  answered  by  the  answer 
to  the  preceding  question.  The  Cherokee  Indians  are  aliens, 
and  can  sue  in  the  federal  courts  the  persons  acting  in  execu- 
tion of  the  law  of  Georgia  for  an  injury  that  is  personal.  I 
see  no  reason  why  such  a  suit  should  not  be  maintained  at 
law  for  a  trespass  or  tort,  or  by  bill  in  equity,  in  case  the 
cause  of  action  be  of  an  equitable  nature;  though  I  cannot  sup- 
pose that  such  a  cause  of  action  is  very  likely  to  occur  to  an 
individual  Indian  in  his  individual  capacity.  The  injury  that 
an  individual  would  suffer  would  probably  be  of  a  tortious 
nature.  The  violation  or  destruction  of  the  civil  or  political 
privileges  of  the  tribe  would  be  an  affair  of  the  tribe,  and  not 
of  a  separate  individual.  The  injury  that  he  is  to  receive,  sepa- 
rately considered,  would  probably  be  such  as  affected  his^er- 
sonal  liberty  or  property ;  and  I  cannot  well  answer  so  gene- 
ral a  question  in  respect  to  an  equitable  preventive  remedy 
by  process  of  injunction,  without  having  a  special  case  stated. 
There  must  in  general  be  a  strong  and  peculiar  case  of  tres- 
pass, going  to  the  destruction  of  the  estate,  or  where  the  mis- 
chief would  be  remediless  and  not  susceptible  of  perfect  pecu- 
niary compensation";  to  entitle  a  party  to  the  interference  of  a 
court  of  equity  by  injunction.  This  is  the  general  doctrine. 
See  the  authorities  referred  to  in  Jerome  vs.  Ross,  7  Johnson's 


248  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
Ch.  Rep.  315.  But  I  will  not  say  there  may  not  be  cases  of 
mere  trespass,  where  chancery  will  interpose  by  injunction, 
though  the  party  can  have  redress  in  damages.  The  special 
preventive  remedy  by  injunction  depends  greatly  upon  the 
application  of  sound  undefined  discretion  to  the  particular 
circumstances  of  tiie  case. 

Has  the  supreme  court  appellate  jurisdiction  under  the 
twenty-fifth  section  of  the  judiciary  act  of  congress,  in  case 
of  a  decision  in  the  highest  court  of  law  or  equity  in  Geor- 
gia, under  the  said  act,  in  favour  of  its  validity,  or  against  the 
constitution,  treaties  and  laws  of  the  United  States? 

I  cannot  hesitate  to  give  an  affirmative  answer  to  this  ques- 
tion. If,  in  rendering  a  final  judgment  or  decree  in  any  suit 
in  the  highest  court  of  law  or  equity  of  a  state,  the  validity 
of  a  treaty  is  drawn  in  question,  and  the  determination  is 
against  its  validity;  or  the  construction  of  a  treaty  is  drawn 
in  question,  and  the  decision  is  against  the  right,  title  or  pri- 
vilege set  up  or  claimed  under  it;  or,  if  the  validity  of  a 
statute  of  the  United  States,  or  authority  exercised  under  it, 
be  drawn  in  question,  and  the  decision  be  against  that  valid- 
ity; or,  if  the  validity  of  any  statute  or  other  state  authority 
be  drawn  in  question,  on  the  ground  of  its  being  repugnant  to 
the  constitution,  treaties,  or  laws  of  the  United  States,  and  the 
decision  be  in  favour  of  its  validity;  or  if  the  construction  of 
any  clause  of  the  constitution  of  the  United  States,  or  of  a 
treaty  or  statute,  be  drawn  in  question,  and  the  decision  be 
against  the  title,  right,  or  privilege  claimed  under  the  same: 
in  all  these  cases  the  supreme  court  of  the  United  States  has 
appellate  jurisdiction;  and  these  cases  reach  and  embrace  every 
controversy  that  can  arise  between  the  Cherokees,  and  the  state 
of  Georgia  or  its  officers,  under  the  execution  of  the  act  of 
Georgia, 

JAMES  KENT. 

New  York,  23d  October  1830. 


APPENDIX,  No.  II. 


TREATIES  BETWEEN  THE  UNITED  STATES  AND  THE  CHEROKEE 
NATIONS  OF  INDIANS. 


TREATY  OF  28  NOVEMBER  1785. 

Articles  concluded  at  Hopewell,  on  the  Keoioee,  between  Benjamin  Hawkins, 
Andrew  Pickens,  Joseph  Martin,  and  Lachlan  JVV Intosh,  Cominissioners 
Plenipotentiary  of  the  United  States  of  America,  of  the  one  part,  and  the 
head  men  and  warriors  of  all  the  Cherokees,  of  the  other. 

The  commissioners  plenipotentiary  of  the  United  States,  in  congress  assem- 
bled, give  peace  to  all  the  Cherokees,  and  receive  them  into  the  favour  and  pro- 
tection of  the  United  States  of  America,  on  the  following  conditions: 
■  Art.  1.  The  head  men  and  warriors  of  all  the  Cherokees  shall  restore  all  the 
prisoners,  citizens  of  the  United  Slates,  or  subjects  of  their  allies,  to  their  entire 
liberty:  they  shall  also  restore  all  the  negroes,  and  all  other  property  taken  during 
the  late  war  from  the  citizens,  to  such  person,  and  at  such  time  and  place,  as 
the  commissioners  shall  appoint. 

Art.  2.  The  commissioners  of  the  United  States,  in  congress  assembled,  shall 
restore  all  the  prisoners  taken  from  the  Indians  during  the  late  war,  to  the  head 
men  and  warriors  of  the  Cherokees,  as  early  as  is  practicable. 

Art.  3.  The  said  Indians,  for  themselves  and  their  respective  tribes  and  towns, 
do  acknowledge  all  the  Cherokees  to  be  under  the  protection  of  the  United 
States  of  America,  and  of  no  other  sovereign  whatsoever. 

Art.  4.  The  boundary  allotted  to  the  Cherokees  for  their  hunting  grounds,  be- 
tween the  said  Indians  and  the  citizens  of  the  United  States,  within  the  limits 
of  the  United  States  of  America,  is  and  shall  be  the  following,  viz.  Beginning 
at  the  mouth  of  Duck  river,  on  the  Tennessee;  thence  running  north-east  to 
the  ridge  dividing  the  waters  running  into  Cumberland  from  those  running  into 
the  Tennessee;  thence  eastwardly  along  the  said  ridge  to  a  north-east  line  to  be 
run,  which  shall  strike  the  river  Cumberland  forty  miles  above  Nashville;  thence 
along  the  said  line  to  the  river;  thence  up  the  said  river  to  the  ford  where  the  Ken- 
tucky road  crosses  the  river;  thence  to  Campbell's  line,  near  Cumberland  Gap; 
thence  to  the  mouth  of  Claud's  creek  on  Holsfon;  thence  to  the  Chimney-top 
mountain;  thence  to  Camp  creek,  near  the  mouth  of  Big  Limestone,  on  Noli- 
chuckey;  thence  a  southerly  course,  six  miles  to  a  mountain;  thence  south  to  the 
North  Carolina  line;  thence  to  the  South  Carolina  Indian  boundary,  and  along 
the  same  south-west  over  the  topnjf  the  Oconee  mountain  till  it  shall  strike  Tu- 
2G 


250  APPENDIX. 

[The  Cherokee  Natioa  vs.  The  State  of  Georgia.] 

galo  river;  ihence  a  direct  line  to  the  top  of  the  Currahee  mouDtain;  thence  to 
the  head  of  the  south  fork  of  Oconee  river. 

Art.  5.  If  any  citizen  of  the  United  States,  or  other  person,  not  being  an  In- 
dian, shall  attempt  to  settle  on  any  of  the  lands  westward  or  southward  of  the  said 
boundary,  which  are  hereby  allotted  to  the  Indians  for  their  hunting  grounds,  or 
having  already  settled  and  will  not  remove  from  the  same  within  six  months 
after  the  ratification  of  this  treaty,  such  person  shall  forfeit  the  protection  of  the 
United  States,  and  the  Indians  may  punish  hiiu  or  not  as  they  please:  provided 
nevertheless,  that  this  article  shall  not  extend  to  the  people  settled  between  the 
fork  of  French  Broad  and  Holston  rivers,  whose  particular  situation  shall  be 
transmitted  to  the  United  States,  in  congress  assembled,  for  their  decision  there- 
on, which  the  Indians  agree  to  abide  by. 

Art.  6.  If  any  Indian  or  Indians,  or  person  residing  among  them,  or  who 
shall  take  refuge  in  their  nation,  shall  commit  a  robbery  or  murder,  or  other  capi- 
tal crime,  on  any  citizen  of  the  United  States,  or  person  under  their  protection, 
the  nation  or  the  tribe  to  which  such  offender  or  offenders  may  belong,  shall  be 
bound  to  deliver  him  or  them  up  to  be  punished  according  to  the  ordinances  of 
the  United  States:  provided  that  the  punishment  shall  not  be  greater  than  if  the 
robbery,  or  murder,  or  other  capital  crime,  had  been  committed  by  a  citizen  on  a 
citizen. 

Art.  7.  If  any  citizen  of  the  United  States,  or  person  under  their  protection, 
shall  commit  a  robbery  or  murder,  or  other  capital  crime,  on  any  Indian,  such 
offender  or  offenders  shall  be  punished  in  the  same  manner  as  if  the  murder  or 
robbery,  or  other  capital  crime,  had  been  committed  on  a  citizen  of  the  United 
States;  and  the  punishment  shall  be  in  presence  of  some  of  the  Cherokees,  if  any 
shall  attend  at  the  time  and  place,  and  that  they  may  have  an  opportunity  so  to 
do,  due  notice  of  the  time  of  such  intended  punishment  shall  be  sent  to  some  one 
of  the  tribes. 

Art.  8.  It  is  understood  that  the  punishment  of  the  innocent,  under  the  idea 
of  retaliation,  is  unjust,  and  shall  not  be  practised  on  either  side,  except  where 
there  is  a  manifest  violation  of  this  treaty;  and  then  it  shall  be  preceded  first  by 
a  demand  of  justice;  and  if  refused,  then  by  a  declaration  of  hostilities. 

Art.  9.  For  the  benefit  and  comfort  of  the  Indians,  and  for  the  prevention  of 
injuries  or  oppressions  on  the  part  of  the  citizens  or  Indians,  the  United  States, 
in  congress  assembled,  shall  have  the  sole  and  exclusive  right  of  regulating  the 
trade,  with  the  Indians,  and  managing  all  their  affairs  in  such  manner  as  they 
think  proper. 

Art.  10.  Until  the  pleasure  of  congress  be  known,  respecting  the  ninth  article, 
all  traders,  citizens  of  the  United  States,  shall  have  liberty  to  go  to  any  of  the 
tribes  or  towns  of  the  Cherokees  to  trade  with  them,  and  they  shall  be  protected 
in  their  persons  and  property,  and  kindly  treated. 

Art.  U.  The  said  Indians  shall  give  notice  to  the  citizens  of  the  United  States 
of  any  designs  which  they  may  know  or  suspect  to  be  formed  in  any  neighbour- 
ing tribe,  or  by  any  person  whomsoever,  against  the  peace,  trade,  or  interest  of 
the  United  States. 

Art.  12.  That  the  Indians  may  have  full  confidence  in  the  justice  of  the 
United  States  respecting  their  interests,  they  shall  have  the  right  to  send  a 
deputy  of  their  choice,  whenever  they  think  fit,  to  congress. 

Art.  13.  The  hatchet  shall  be  for  ever  buried,  and  the  peace  given  by  the 
United  States,  and  friendship  re-established  between  the  said  states  on  the  one 
part,  and  all  the  Cherokees  on  the  other,  shall  be  universal;  and  the  contracting 


APPENDIX.  251 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

parties  shall  use  their  utmost  endeavours  to  maintain  the  peace  given  as  aforesaid' 
and  friendship  re-established. 

In  witness  of  all  and  every  thing  herein  determined,  between  the  United  States 
of  America  and  all  the  Cherokees,  we,  their  underwritten  comiuissioners,  by 
virtue  of  our  full  powers,  have  signed  this  definitive  treaty,  and  have  caused 
our  seals  to  be  hereunto  affixed. 

Done  at  Hopewell,  on  the  Keowee,  this  twenty-eighth  day  of  November,  in 
the  year  of  our  Lord  one  thousand  seven  hundred  and  eighty-five. 

Signed  and  sealed  by  the  commissioners  of  the  United  States,  and  thirty-seven 
chiefs  and  warriors  of  the  Cherokee  nation. 


TREATY  OF  2  JULY  17-91. 

A  treaty  of  peace  and  friendship,  made  and  concluded  between  the  president  of 
the  United  States  of  America,  on  the  part  and  behalf  of  the  said  states, 
and  the  undersigned  chiefs  and  warriors  of  the  Cherokee  nation  of  Indians^ 
on  the  part  and  behalf  of  the  said  nation. 

The  parties  being  desirous  of  establishing  a  permanent  peace  and  friendship 
between  the  United  States  and  the  said  Cherokee  nation,  and  the  citizens  and 
members  thereof,  and  to  remove  the  causes  of  war  by  ascertaining  Iheiv  limits 
and  making  other  necessary,  just,  and  friendly  arrangements:  the  president  of  the 
United  States,  by  William  Blount,  governor  of  the  territory  of  the  United  States 
of  America  south  of  the  river  Ohio,  and  superintendent  of  Indian  affairs  for  the 
southern  district,  who  is  vested  with  full  powers  for  these  purposes,  by  and 
with  the  advice  and  consent  of  the  senate  of  the  United  States:  and  the  Cherokee 
nation,  by  the  undersigned  chiefs  and  warriors  representing  the  said  nation,  have 
agreed  to  the  following  articles,  namely: 

Art.  1.  There  shall  be  perpetual  peace  and  friendship  between  all  the  citizens 
of  the  United  States  of  America,  and  all  the  individuals  composing  the  whole 
Cherokee  nation  of  Indians. 

Art.  2.  The  undersigned  chiefs  and  warriors,  for  themselves  and  all  parts  of  the 
Cherokee  nation,  do  acknowledge  themselves  and  the  said  Cherokee  nation  to  be 
under  the  protection  of  the  United  States  of  America,  and  of  no  other  sovereign 
whatsoever;  and  they  also  stipulate  that  the  said  Cherokee  nation  will  not  hold 
any  treaty  with  any  foreign  power,  individual  state,  or  with  individuals  of  any 
state. 

Art.  3.  The  Cherokee  nation  shall  deliver  to  the  governor  of  the  territory  of 
the  United  States  of  America  south  of  the  river  Ohio,  on  or  before  the  first  day 
of  April  next,  at  this  place,  all  persons  who  are  now  prisoners,  captured  by  them 
from  any  part  of  the  United  States:  and  the  United  Slates  shall,  on  or  before  the 
same  day,  at  the  same  place,  restore  to  the  Cherokees  all  the  prisoners  now  in 
captivity,  which  the  citizens  of  the  United  States  have  captured  from  them. 

Art.  4.  The  boundary  between  the  citizens  of  the  United  States  and  the 
Cherokee  nation,  is  and  shall  be  as  follows:  beginning  at  the  top  of  the  Currahee 
mountain,  where  the  Creek  line  passes  it;  thence  a  direct  line  to  Tugelo  river; 
thence  north-east  to  the  Occunna  mountain,  and  over  the  same  along  the  South 
Carolina  Indian  boundary,  to  the  North  Carolina  boundary;  thence  north  to  a 
point  from  which  a  line  is  to  be  extended  to  the  river  Clinch,  thai  shall  pass  the 


252  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

HoIstoD  at  the  ridge  which  divides  the  waters  running  into  Little  River  from 
those  running  into  the  Tennessee;  thence  up  the  river  Clinch  to  Campbell's  line, 
and  along  the  same  to  the  top  of  Cumberland  mountain;  thence  a  direct  line  to 
the  Cumberland  river  where  the  Kentucky  road  crosses  it;  thence  down  the 
Cumberland  river  to  a  point  from  which  a  south-west  line  will  strike  the  ridge 
which  divides  the  waters  of  Cumberland  from  those  of  Duck  river,  forty  miles 
above  Nashville;  thence  down  the  said  ridge  to  a  point  from  whence  a  south- 
west line  will  strike  the  mouth  of  Duck  river. 

And  in  order  to  preclude  forever  all  disputes  relative  to  the  said  boundary,  the 
same  shall  be  ascertained  and  marked  plainly,  by  three  persons  appointed  by  the 
United  States,  and  three  Cherokees  on  the  part  of  their  nation. 

And  in  order  to  extinguish  forever  all  claims  of  the  Cherokee  nation,  or  any 
part  thereof,  to  any  of  the  land  lying  to  the  right  of  the  line  above  described, 
beginning  as  aforesaid  at  the  Currahee  mountain,  it  is  hereby  agreed  that  in  addi- 
tion to  the  consideration  heretofore  made  for  the  said  land,  the  United  Slates 
will  cause  certain  valuable  goods  to  be  immediately  delivered  to  the  undersigned 
chiefs  and  warriors,  for  the  use  of  their  nation;  and  the  said  United  States  will 
also  cause  the  sum  of  one  thousand  dollars  to  be  paid  annually  to  the  said  Che- 
rokee nation.  And  the  undersigned  chiefs  and  warriors  do  hereby,  for  themselves 
and  the  whole  Cherokee  nation,  their  heirs  and  descendants,  for  the  considera- 
tions above  mentioned,  release,  quit  claim,  relinquish,  and  cede,  all  the  land  to 
the  right  of  the  line  described,  and  beginning  as  aforesaid. 

Art.  5.  It  is  stipulated  and  agreed,  that  the  citizens  and  inhabitants  of  the 
United  States  shall  have  a  free  and  unmolested  use  of  a  road  from  Washington 
district  to  Mero  district,  and  of  the  navigation  of  the  Tennessee  river. 

Alt.  6.  It  is  agreed  on  the  part  of  the  Cherokees,  that  the  United  States  shall 
have  the  sole  and  exclusive  right  of  regulating  their  trade. 
,    Art.  7.  The  United  States  solemnly  guaranty  to  the  Cherokee  nation  all  their 
lands  not  hereby  ceded. 

Art.  8.  If  any  citizen  of  the  United  States,  or  other  person  not  being  an  In- 
dian, shall  settle  on  any  of  the  Cherokees'  lands,  such  person  shall  forfeit  the 
protection  of  the  United  States,  and  the  Cherokees  may  punish  him  or  not,  as 
they  please. 

Art.  9.  No  citizen  or  inhabitant  of  the  United  States  shall  attempt  to  hunt  or 
destroy  the  game  on  the  lands  of  the  Cherokees;  nor  shall  any  citizen  or  inhabi- 
tant go  into  the  Cherokee  country,  without  a  passport  first  obtained  from  the  gov- 
ernor of  some  one  of  the  United  States,  or  territorial  districts,  or  such  other  per- 
son as  the  president  of  the  United  States  may,  from  time  to  time,  authorize  to 
grant  the  same. 

Art.  10.  If  any  Cherokee  Indian  or  Indians,  or  person  residing  among  them,  or 
who  shall  take  refuge  in  their  nation,  shall  steal  a  horse  from,  or  commit  a  rob- 
bery or  murder,  or  other  capital  crime,  on  any  citizens  or  inhabitants  of  the 
United  States,  the  Cherokee  nation  shall  be  bound  to  deliver  him  or  them  up,  to 
be  punished  according  to  the  laws  of  the  United  States. 

Art.  11.  If  any  citizen  or  inhabitant  of  the  United  States,  or  of  either  of  the 
territorial  districts  of  the  United  States,  shall  go  into  any  town,  settlement,  or 
territory  belonging  to  the  Cherokees,  and  shall  there  commit  any  crime  upon  or 
trespass  against  the  person  or  property  of  any  peaceable  and  friendly  Indian  or 
Indians,  which,  if  committed  within  the  jurisdiction  of  any  state,  or  within  the 
jurisdiction  of  either  of  the  said  districts,  against  a  citizen  or  white  inhabitant 
thereof,  would  be  punishable  by  the  laws  of  such  state  or  district,  such  offender  > 


APPENDIX.  253 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

or  oSenders  shall  be  subject  to  (he  same  punishment,  and  shall  be  proceeded 
against  in  (he  same  manner  as  if  the  offence  had  been  committed  within  the  ju- 
risdiction of  the  state  or  district  to  which  he  or  they  may  belong,  against  a  citizen 
or  white  inhabitant  thereof. 

Art.  12.  In  case  of  violence  on  the  persons  or  property  of  the  individuals 
of  either  party,  neither  retaliation  nor  reprisal  shall  be  committed  by  the  other, 
until  satisfaction  shall  have  been  demanded  of  the  party  of  which  the  aggressor 
is,  and  shall  have  been  refused. 

Art.  13.  The  Cherokees  shall  give  notice  to  the  citizens  of  the  United  States, 
of  any  designs  which  they  may  know  or  suspect  to  be  formed  in  any  neighbour- 
ing tribe,  or  by  any  person  whatever,  against  the  peace  and  interest  of  the  United 
States. 

Art.  14.  That  the  Cherokee  nation  may  be  led  to  a  greater  degree  of  civiliza- 
tion, and  to  become  herdsmen  and  cultivators,  instead  of  remaining  in  a  state  of 
hunters,  the  United  States  will,  from  time  to  lime,  furnish,  gratuitously,  the  said 
nation  with  useful  implements  of  husbandry;  and  further  to  assist  the  said  nation 
in  so  desirable  a  pursuit,  and  at  the  same  time  to  establish  a  certain  mode  of  com- 
munication, the  United  States  will  send  such  and  so  many  persons  to  reside  in 
said  nation,  as  they  may  judge  proper,  not  exceeding  four  in  number,  who  shall 
qualify  themselves  to  act  as  interpreters.  These  persons  shall  have  lands 
assigned  by  the  Cherokees  for  cultivation  for  themselves  and  their  successors  in 
office;  but  they  shall  be  precluded  exercising  any  kind  of  traffic. 

Art.  15.  All  animosities  for  past  grievances  shall  henceforth  cease,  and  the 
contracting  parties  will  carry  the  foregoing  treaty  into  full  execution  with  all 
good  faith  and  sincerity. 

Art.  16.  This  treaty  shall  take  effect  and  be  obligatory  on  the  contracting  par- 
ties as  soon  as  (he  same  shall  have  been  ra(ified  by  the  president  of  the  United 
States,  with  the  advice  and  consent  of  the  senate  of  the  United  States. 

In  witness  of  all  and  every  thing  herein  determined  between  the  United 
States  of  America  and  the  whole  Cherokee  nation,  the  parties  have  hereunto 
set  their  hands  and  seals,  at  the  treaty  ground  on  the  bank  of  theHolston,  near 
the  mouth  of  (he  French  Broad,  wi(hin  (he  United  States,  this  second  day  of 
July,  in  the  year  of  our  Lord  one  thousand    seven  hundred  and  ninety-one. 

Signed  and  sealed  by  William  Blount,  governor  in  and  over  the  territory  of  the 
United  States  of  America  south  of  the  river  Ohio,  and  superintendent  of  Indian 
affairs  for  the  southern  district;  and  by  forty-one  chiefs  and  warriors  of  the  Che- 
rokee nation. 


Mditional  Article  to  the  treaty  made  between  the  United   States  and  the 
Cherokees,  on  the  2d  of  July,  one  thousand  seven  hundred  and  ninety-one. 

It  is  hereby  mutually  agreed,  between  Henry  Knox,  secretary  of  war,  duly 
authorised  thereto  in  behalf  of  the  United  States,  on  the  one  part,  and  the  under- 
signed chiefs  and  warriors,  in  behalf  of  themselves  and  the  Cherokee  nation,  on 
the  other  part,  that  the  following  article  shall  be  added  to,  and  considered  as  part 
of,  the  (rea(y  made  be(ween  the  United  States  and  the  said  Cherokee  nation,  on 
the  2d  day  of  July,  one  thousand  seven  hundred  and  ninety-one,  to  wit: 

The  sum  to  be  paid  annually  by  the  United  States  to  the  Cherokee  nation  of 
Indians,  in  consideration  of  the  relinquishment  of  lands,  as  stated  in  the  treaty 
made  with  them  on  the  2d  day  of  July,  one  thousand  seven  hundred  and  ninety- 


254  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

one,  shall  be  one  thousand  five  hundred  dollars,  instead  of  one  thousand  dollars, 
mentioned  in  the  said  treaty. 

In  testimony  whereof,  the  said  Henry  Knox,  secretary  of  war,  and  the  said 
chiefs  and  wariiors  of  the  Cherokee  nation,  have  hereunto  set  their  hands  and 
seals,  in  the  city  of  Philadelphia,  this  seventeenth  day  of  February,  in  the  year 
of  our  Lord  one  thousand  seven  hundred  and  ninety-two. 

Signed  by  H.  Knox,  secretary  at  war,  and  by  seven  Cherokee  chiefs  and 
warriors. 


TREATY  OF  26  JUNE  1794. 

Articles  of  a  treaty  between  the  United  States  of  America  and  the  Cherokee 

Indians. 

Whereas  the  treaty  made  and  concluded  on  Holston  river,  on  the  second  day 
of  July  one  thousand  seven  hundred  and  ninety-one,  between  the  United  States 
of  America  and  the  Cherokee  nation  of  Indians,  has  not  been  fully  carried  into 
execution  by  reason  of  some  misunderstandings  which  have  arisen: 

Art.  1.  And  whereas  the  undersigned  Henry  Knox,  secretary  for  the  depart- 
ment of  war,  being  authorised  thereto  by  the  president  of  the  United  States,  in 
behalf  of  the  said  United  States;  and  the  undersigned  chiefs  and  warriors,  in  their 
own  names,  and  in  behalf  of  the  whole  Cherokee  nation,  are  desirous  of  re-estab- 
lishing peace  and  friendship  between  the  said  parlies  in  a  permanent  manner,  do 
hereby  declare,  that  the  said  treaty  of  Holston  is,  to  all  intents  and  purposes,  in 
full  force,  and  binding  upon  the  said  parties,  as  well  in  respect  to  the  boundaries 
therein  mentioned,  as  in  all  other  respects  whatever. 

Art.  2.  It  is  hereby  stipulated  that  the  boundaries  mentioned  in  the  fourth 
article  of  the  said  treaty  shall  be  actually  ascertained  and  marked  in  the  manner 
prescribed  by  the  said  article,  whenever  the  Cherokee  nation  shall  have  ninety 
days  notice  of  the  time  and  place  at  which  the  commissioners  of  the  United 
States  intend  to  commence  their  operation. 

Art.  3.  The  United  States,  to  evince  their  justice  by  amply  compensating  the 
said  Cherokee  nation  of  Indians  for  all  relinquishments  of  land  made,  either  by 
the  treaty  of  Hopewell,  upon  the  Keowee  river,  concluded  on  the  twenty-eighth 
of  November,  one  thousand  seven  hundred  and  eighty-five;  or  the  aforesaid 
treaty  made  upon  Holston  river,  on  the  second  of  July  one  thousand  seven  hun- 
dred and  ninety-one;  do  hereby  stipulate,  in  lieu  of  all  former  sums  to  be  paid 
annually,  to  furnish  the  Cherokee  Indians  with  goods  suitable  for  their  use,  to  the 
amount  of  five  thousand  dollars  yearly. 

Art.  4.  And  the  said  Cherokee  nation,  in  order  to  evince  the  sincerity  of  their  in- 
tentions in  future,  to  prevent  the  practice  of  stealing  horses,  attended  with  the 
most  pernicious  consequences  to  the  lives  and  peace  of  both  parties,  do  hereby 
agree,  that  for  every  horse  which  shall  be  stolen  from  the  white  inhabitants  by 
any  Cherokee  Indians,  and  not  returned  within  three  months,  that  the  sum  of  fifty 
dollars  shall  be  deducted  from  the  said  annuity  of  five  thousand  dollars. 

Art.  5.  The  articles  now  stipulated  will  be  considered  as  permanent  additions 
to  the  treaty  of  Holston,  as  soon  as  they  shall  have  been  ratified  by  the  presi- 
dent of  the  United  States  and  the  senate  of  the  United  States. 

In  witness  of  all  and  every  thing  herein  determined  between  the  United  Stales 


APPENDIX.  255 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

of  America  and  the  whole  Cherokee  nation,  the  parties  have  hereunto  set 
their  hands  and  seals,  in  the  city  of  Philadelphia,  within  the  United  States, 
this  twenty-sixth  day  of  June,  in  the  year  of  our  Lord  one  thousand  seven 
hundred  and  ninety-four. 

Signed  and  sealed  by  H.  Knox,  secretary  at  war;  and  by  thirteen  chiefs  and 
warriors  of  the  Cherokee  Indians. 


TREATY  OF  2  OCTOBER  1798. 

Articles  of  a  treaty  between  the  United  States  of  America  and  the  Cherokee 

Indians. 

Whereas  the  treaty  made  and  concluded  on  Holston  river,  on  the  second  day 
of  July,  in  the  year  one  thousand  seven  hundred  and  ninety-one,  between  the 
United  States  of  America  and  the  Cherokee  nation  of  Indians,  had  not  been  car- 
ried into  execution  for  some  time  thereafter,  by  reason  of  some  misunderstand- 
ings which  had  arisen;  and  whereas,  in  order  to  remove  such  misunderstand- 
ings, and  to  provide  for  carrying  the  said  treaty  into  effect,  and  for  re-establishing 
more  fully  the  peace  and  friendship  between  the  parties,  another  treaty  was  held, 
made,  and  concluded,  by  and  between  them,  at  Philadelphia,  the  twenty-sixth 
day  of  June,  in  the  year  one  thousand  seven  hundred  and  ninety-four:  in  which, 
among  other  things,  it  was  stipulated,  that  the  boundaries  mentioned  in  the 
fourth  article  of  the  said  treaty  of  Holston,  should  be  actually  ascertained  and 
marked,  in  the  manner  prescribed  by  the  said  article  whenever  the  Cherokee 
nation  should  have  ninety  days  notice  of  the  time  and  place  at  which  the  com- 
missioners of  the  United  States  intended  to  commence  their  operations:  and 
whereas  further  delays  in  carrying  the  said  fourth  article  into  complete  effect  did 
take  place,  so  that  the  boundaiies,  mentioned  and  described  therein,  were  not 
regularly  ascertained  and  marked  until  the  latter  part  of  the  year  one  thousand 
seven  hundred  and  ninety  seven;  before  which  time,  and  for  want  of  knowing 
the  direct  course  of  the  said  boundary,  divers  settlements  were  made,  by  divers 
citizens  of  the  United  States,  upon  the  Indian  lands  over  and  beyond  the  boun- 
daries so  mentioned  and  described  in  the  said  article,  and  contrary  to  the  inten- 
tion of  the  said  treaties;  but  which  settlers  were  removed  from  the  said  Indian 
lands  by  authority  of  the  United  States,  as  soon  after  the  boundaries  had  been  so 
lawfully  ascertained  and  marked  as  the  nature  of  the  case  had  admitted:  and 
whereas,  for  the  purpose  of  doing  justice  to  the  Cherokee  nation  of  Indians,  and 
remedying  inconveniences  arising  to  citizens  of  the  United  States  from  the  ad- 
justment of  the  boundary  line  between  the  lands  of  the  Cherokees  and  those  of 
the  United  States,  or  the  citizens  thereof,  or  from  any  other  cause  in  relation  to 
the  Cherokee?;  and  in  order  to  promote  the  interests  and  safety  of  the  said  states, 
and  the  citizens  thereof,  the  president  of  the  United  Slates,  by  and  with  the  ad- 
vice and  consent  of  the  senate  thereof,  hath  appointed  George  Walton,  of  Geor- 
gia, and  the  president  of  the  United  States  hath  also  appointed  lieutenant  colonel 
Thomas  Butler,  coumianding  the  troops  of  the  United  States  in  the  state  of  Ten- 
nessee, to  be  commissioners  for  the  purpose  aforesaid:  and  who,  on  the  part  of 
the  United  States,  and  the  Cherokee  nation,  by  the  undersigned  chiefs  and  war- 
riors, representing  the  said  nation,  have  agreed  to  the  following  articles,  namely: 

Art.  1.  The  peace  and  friendship  subsisting  between  the  United  States  and 
the  Cherokee  people,  are  hereby  renewed,  continued,  and  declared  perpetual. 


256  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.]. 

Art.  2.  The  treaties  subsisting  between  the  present  contracting  parties,  are  ac- 
knowledged to  be  of  full  and  operating  force;  together  with  the  construction  and 
usage  under  their  respective  articles,  and  so  to  continue. 

Art.  3.  The  limits  and  boundaries  of  the  Cherokee  nation,  as  stipulated  and 
marked  by  the  existing  treaties  between  the  parties,  shall  be  and  remain  the 
same,  where  not  altered  by  the  present  treaty. 

Art.  4.  In  acknowledgement  for  the  protection  of  the  United  States,  and  for 
the  considerations  herein  after  expressed  and  contained,  the  Cherokee  nation 
agree,  and  do  hereby  relinquish  and  cede  to  the  United  States,  all  the  lands 
within  the  following  points  and  lines,  viz.  from  a  point  on  the  Tennessee  river, 
below  Tellico  block  house,  called  the  Wildcat  Rock,  in  a  direct  line  to  the 
Militia  spring,  near  the  Maryville  road  leading  from  Tellico.  From  the  said 
spring  to  the  Chillhowie  mountain,  by  a  line  so  to  be  run,  as  will  leave  all  the 
farms  on  Nine  Mile  Creek  to  the  northward  and  eastward  of  it;  and  to  be  con- 
tinued along  Chillhowie  mountain,  ^until  it  strikes  Hawkins's  line.  Thence 
along  the  said  line  to  the  great  Iron  mountain;  and  from  the  top  of  which  a  line 
to  be  continued  in  a  south  eastwardly  course  to  where  the  most  southwardly 
branch  of  Little  river  crosses  the  divisional  line  to  Tugalo  river:  from  the  place 
of  beginning,  the  Wildcat  Rock,  down  the  northeast  margin  of  the  Tennessee 
river  (not  including  islands)  to  a  point  or  place  one  mile  above  the  junction  of 
that  river  with  the  Clinch,  and  from  thence  by  a  line  to  be  drawn  in  a  right 
angle,  until  it  intersects  Hawkins's  line  leading  from  Clinch.  Thence  down  the 
said  line  to  the  river  Clinch;  thence  up  the  said  river  to  its  junction  with  Em- 
mery's river;  and  thence  up  Emmery's  river  to  the  foot  of  Cumberland  mountain. 
From  thence  a  line  to^be  drawn  north'eastwardly,  along  the  foot  of  the  moun- 
tain, until  it  intersects  with  Campbell's  line. 

Art.  5.  To  prevent  all  future  misunderstanding  about  the  line  described  in  the 
foregoing  article,  two  commissioners  shall  be  appointed  to  superintend  the  run- 
ning and  marking  the  same,  where  not  ascertained  by  the  rivers,  immediately 
after  signing  this  treaty;  one  to  be  appointed  by  the  commissioners  of  the  United 
States,  and  the  other  by  the  Cherokee  nation;  and  who  shall  cause  three  maps 
or  charts  thereof  to  be  made  out;  one  whereof  shall  be  transmitted  and  deposited 
in  the  war  oflBce  of  the  United  States;  another  with  the  executive  of  the  state 
of  Tennessee,  and  the  third  with  the  Cherokee  nation,  which  said  line  shall 
form  a  part  of  the  boundary  between  the  United  States  and  the  Cherokee  nation. 

Art.  6.  In  consideration  of  the  relinquishment  and  cession  hereby  made,  the 
United  States,  upon  signing  the  present  treaty,  shall  cause  to  be  delivered  to  the 
Cherokees,  goods,  wares,  and  merchandise,  to  the  amount  of  five  thousand  dol- 
lars, and  shall  cause  to  be  delivered,  annually,  other  goods,  to  the  amount  of  one 
thousand  dollars,  in  addition  to  the  annuity  already  provided  for;  and  will 
continue  the  guarantee  of  the  remainder  of  their  country  forever,  as  made  and 
contained  in  former  treaties. 

Art.  7.  The  Cherokee  nation  agree,  (hat  the  Kentucky  road,  running  between 
the  Cumberland  mountain  and  the  Cumberland  river,  where  the  same  shall  pass 
through  the  Indian  land,  shall  be  an  open  and  free  road  for  the  use  of  the  citi- 
zens of  the  United  States,  in  the  like  manner  as  the  road  from  Southwest  Point 
to  Cumberland  river.  In  consideration  of  which  it  is  hereby  agreed  on  the  part 
of  the  United  States,  that  until  settlements  shall  make  it  improper,  the  Cherokee 
hunters  shall  be  at  liberty  to  hunt  and  take  game  upon  the  lands  relinquished 
and  ceded  by  this  treaty. 


APPENDIX.  257 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

Art.  8.  Due  notice  shall  be  given  to  the  principal  towns  of  the  Cherokees,  of 
the  time  proposed  for  delivering  the  annual  stipends;  and  sufficient  supplies  of 
provisions  shall  be  furnished,  by  and  at  the  expense  of  the  United  States,  to  sub- 
sist such  reasonable  number  that  may  be  sent,  or  shall  attend  to  receive  them, 
during  a  reasonable  lime. 

Art.  9.  It  is  mutually  agreed  between  the  parties,  that  horses  stolen  and  not 
returned  within  ninety  days  shall  be  paid  for  at  the  rate  of  sixty  dollars  each;  if 
stolen  by  a  white  man,  citizen  of  the  United  States,  the  Indian  proprietor  shall 
be  paid  in  cash;  and  if  stolen  by  an  Indian  from  a  citizen,  to  be  deducted  as  ex- 
pressed in  the  fourth  article  of  the  treaty  of  Philadelphia.  This  article  shall 
have  retrospect  to  the  commencement  of  the  first  conferences  at  this  place  iu  the 
present  year,  and  no  further.  And  all  animosities,  aggressions,  thefts,  and  plun- 
derings,  prior  to  that  day,  shall  cease,  and  be  no  longer  remembered  or  demand- 
ed on  either  side. 

Art.  10.  The  Cherokee  nation  agree,  that  the  agent  who  shall  be  appointed  to 
reside  among  them  from  time  to  time,  shall  have  a  sufficient  piece  of  ground  al- 
lotted for  his  temporary  use. 

And  lastly,  this  treaty,  and  the  several  articles  it  contains,  shall  be  considered 
as  additional  to,  and  forming  a  part  of,  treaties  already  subsisting  between  the 
United  States  and  the  Cherokee  nation,  and  shall  be  carried  into  etfect  on  both 
sides,  with  all  good  faith,  as  soon  as  the  same  shall  be  approved  and  ratified  by 
the  president  of  the  United  States  and  senate  thereof. 

In  witness  of  all  and  every  thing  herein  determinsd  between  the  United 
States  of  America,  and  the  whole  Cherokee  nation,  the  parties  hereunto  set 
their  hands  and  seals  in  the  council  house,  near  Teliico,  on  Cherokee  ground, 
and  within  the  United  States,  this  second  day  of  October,  in  the  year  one 
thousand  seven  hundred  and  ninety-eight,  and  in  the  twenty-third  year  of  the 
independence  and  sovereignty  of  the  United  States. 

Signed  and  sealed  by  the  commissioners  of  the  United  States,  and  by  ihirty- 
ninfi  chiefs  and  warriors  of  the  Cherokee  nation^ 


TREATY  OF  25  OCTOBER  180&. 

Articles  of  a  treaty  agreed  upon  betioeen  the  United  States  of  America, 
by  their  commissioners  Return  J.  Meigs  and  Daniel  Smith,  appointed 
to  hold  conferences  with  the  Cherokee  Indians,  for  the  purpose  of  arrang- 
ing certain  interesting  matters  with  the  said  Cherokees,  of  the  one  part, 
and  the  undersigned  chiefs  and  head  men  of  the  said  nation,  of  the 
other  part. 

Art.  1.  All  former  treaties,  which  provide  for  the  maintenance  of  peace  and 
preventing  of  crimes,  are,  on  this  occasion,  recognized  and  continued  in  force. 

Art.  2.  The  Cherokees  quit  claim  and  cede  to  the  United  States,  all  the  land 
which  they  have  heretofore  claimed,  lying  to  the  north  of  the  following  boundary 
line;  beginning  at  the  mouth  of  Duck  river,  running  thence  up  the  main  stream  of 
the  same  to  the  junction  of  the  fork,  at  the  head  of  which  fort  Nash  stood,  with 
the  main  south  fork;  thence  a  direct  course  to  a  point  on  the  Tennessee  river  bank 
opposite  the  mouth  of  Hiwassee  river.  If  the  line  from  Hiwassee  should  leave 
out  Field's  Settlement,  it  is  to  be  marked  round  this  improvement,  and  then 
2  H 


358  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

continued  the  straight  course;  thence  up  the  middle  of  the  Tennessee  river  (but 
leaving  all  the  islands  to  the  Cheroitees),  to  (he  mouth  of  Clinch  river;  thsnce 
up  the  Clinch  river  to  the  former  boundary  line  agreed  upon  with  the  said  Cher- 
okees,  reserving,  at  the  same  lime,  to  the  use  of  the  Cherokees,  a  small  tract 
lying  at  and  below  the  mouth  of  Clinch  river;  from  the  mouth  extending  thence 
down  the  Tennessee  river,  from  the  mouth  of  Clinch  to  a  notable  rock  on  the 
north  bank  of  the  Tennessee,  in  view  from  Southwest  Point;  thence  a  course  at 
right  angles  with  the  river,  to  the  Cumberland  road;  thence  eastwardly  along  the 
same,  to  the  bank  of  Clinch  river,  so  as  to  secure  the  ferry  landing  to  the  Cher- 
okees up  to  the  first  hill,  and  down  the  same  to  the  mouth  thereof,  together 
with  two  other  sections  of  one  square  mile  each,  one  of  which  is  at  the  foot  of 
Cumberland  mountain,  at  and  near  the  place  where  the  turnpike  gate  now  stands; 
the  other  on  the  north  bank  of  the  Tennessee  river,  where  the  Cherokee  Taloo- 
tiske  now  lives.  And  whereas,  from  the  present  cession  made  by  the  Chero- 
kees, and  other  circumstances,  the  site  of  the  garrisons  at  Southwest  Point  and 
Tellico,  are  become  not  the  most  convenient  and  suitable  places  for  the  accom- 
modation of  the  said  Indians,  it  may  become  expedient  to  remove  the  said  gar- 
risons and  factory  to  some  more  suitable  place;  three  other  square  miles  are  re- 
served for  the  particular  disposal  of  the  United  States  on  the  north  bank  of  the 
Tennessee,  opposite  to  and  below  the  mouth  of  Hiwassee. 

Art.  3.  In  consideration  of  the  above  cession  and  relinquishment,  the  United 
States  agree  to  pay  immediately  three  thousand  dollars  in  valuable  merchandise, 
and  eleven  thousand  dollars  within  ninety  days  after  the  ratification  of  this  trea- 
ty, and  also  an  annuity  of  three  thousand  dollars,  the  commencement  of  which 
is  this  day.  But  so  much  of  the  said  eleven  thousand  dollars,  as  the  said  Cher- 
okees may  agree  to  accept  in  useful  articles  of,  and  machines  for,  agriculture  and 
manufactures,  shall  be  paid  in  those  articles,  at  their  option. 

Art.  4.  The  citizens  of  the  United  States  shall  have  the  free  and  unmolested 
use  and  enjoyment  of  the  two  following  described  roads,  in  addition  to  those 
which  are  at  present  established  through  their  country;  one  to  proceed  from 
some  convenient  place  near  the  head  of  Stone's  river,  and  fall  into  the  Georgia 
road  at  a  suitable  place  towards  the  southern  frontier  of  the  Cherokees.  The 
other  to  proceed  from  the  neighbourhood  of  Franklin,  or  Big  Harpath,  and  cross- 
ing the  Tennessee  at  or  near  the  Muscle  Shoals,  to  pursue  the  nearest  and  best 
way  to  the  settlements  on  the  Tombigbee.  These  roads  shall  be  viewed  and 
marked  out  by  men  appointed  on  each  side  for  that  purpose;  in  order  that  they 
may  be  directed  the  nearest  and  best  ways,  and  the  time  of  doing  the  business, 
the  Cherokees  shall  be  duly  notified. 

Art.  5.  This  treaty  shall  take  effect  and  be  obligatory  on  the  contracting  par- 
ties, as  soon  as  it  is  ratified  by  the  president  of  the  United  States,  by  and  with 
the  advice  and  consent  of  the  senate  of  the  same. 

In  testimony  whereof,  the  said  commissioners,  and  the  undersigned  chiefs  and 
head  men  of  the  Cherokees,  have  hereto  set  their  hands  and  seals. 

Done  at  Tellico.  the  twenty-fifth  day  of  October  one  thousand  eight  hun- 
dred and  five. 

Signed  and  sealed  by  the  commissioners  of  the  United  States,  and  by  thirty- 
three  chiefs  and  warriors  of  the  Cherokee  nation. 


APPENDIX.  259 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

TREATY  OF  27  OCTOBER  1805. 

Articles  of  a  treaty  betioeen  the  United  States  of  America,  by  their  commiss- 
ioners, Return  J.  Meigs  and  Daniel  Smith,  who  are  appointed  to  hold  con- 
ferences  with  the  Cherokees,  for  the  purpose  of  arranging  certain  interest' 
ing  matters  with  the  said  Indians,  of  the  one  part,  and  the  U7idersigned 
chiefs  and  head  men  of  the  Cherokees,  of  the  other  part. 

Art.  1.  Whereas  it  has  been  represented  by  the  one  party  to  the  other,  that 
the  section  of  land  on  which  the  garrison  of  Southwest  Point  stands,  and  which 
extends  to  Kingston,  is  liitely  to  be  a  desirable  place  for  the  assembly  of  the 
state  of  Tennessee  to  convene  at  (a  committee  from  that  body  now  in  session 
having  viewed  the  situation):  now,  the  Cherokees  being  possessed  of  a  spirit  of 
conciliation,  and  seeing  that  this  tract  is  desired  for  public  purposes,  and  not  for 
individual  advantages,  reserving  the  ferries  to  themselves,  quit  claim,  and  cede 
to  the  United  States  the  said  section  of  land,  understanding,  at  the  same  time, 
that  the  buildings  erected  by  the  public  are  to  belong  to  the  public,  as  well  as 
the  occupation  of  the  same,  during  the  pleasure  of  the  government;  we  also  cede 
to  the  United  States  the  first  island  in  the  Tennessee,  above  the  mouth  of  Clinch. 

Art.  2.  And  whereas  the  mail  of  the  United  States  is  ordered  to  be  carried 
from  Knoxville  to  New  Orleans,  through  the  Cherokee,  Creek,  and  Choctaw 
countries;  the  Cherokees  agree,  that  the  citizens  of  the  United  States  shall  have, 
so  far  as  it  goes  through  their  country,  the  free  and  unmolested  use  of  a  road 
leading  from  Tellico  to  Tomblgbee,  to  be  laid  out  by  viewers  appointed  on  both 
sides,  who  shall  direct  it  the  nearest  and  best  way;  and  the  time  of  doing  the 
business  the  Cherokees  shall  be  notified  of. 

Art.  3.  In  consideration  of  the  above  cession  and  relinquishment,  the  United 
States  agree  to  pay  to  the  said  Cherokee  Indians,  sixteen  hundred  dollars  in  mo- 
ney, or  useful  merchandise,  at  their  option,  within  ninety  days  after  the  ratilica- 
tion  of  this  treaty. 

Art.  4.  This  treaty  shall  be  obligatory  between  the  contracting  paities,  as  soon 
as  it  is  ratified  by  the  president,  by  and  with  the  advice  and  consent  of  the  sen- 
ate of  the  United  States. 

In  testimony  whereof,  the  said  commissioners,  and  the  undersigned  chiefs 
and  head  men  of  the  Cherokees,  have  hereto  set  their  hands  and  seals. 

Done  at  Tellico,  this  twenty-seventh  day  of  October,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  five. 

Signed  and  sealed  by  the  commissioners  of  the  United  States,  and  by  four- 
teen chiefs  and  warriors  of  the  Cherokees. 


TREATY  OF  7  JANUARY  1806. 

Articles  of  a  convention  made  between  Henry  Dearborn,  secretary  of  war, 
being  specially  atUhorized  thereto  by  the  president  of  the  United  States, 
and  the  undersigned  chiefs  and  head  men  of  the  Cherokee  nation  of  In- 
dians, duly  authorized  and  empowered  by  said  nation. 

Art.  1.  The  undersigned  chiefs  and  head  men  of  the  Cherokee  nation  of  In- 
dians, for  themselves  and  in  behalf  of  their  nation,   relinquish  to  the  United 


260  APPENDIX. 

[The  Cherokee  Nation  vs.  The  Stale  of  •Georgia.] 

States  all  right,  title,  interest,  and  claim,  which  they  or  their  nation  have  or  ever 
had  to  all  thai  tract  of  country  which  lies  to  the  northward  of  the  river  Tenness- 
ee, and  westward  of  a  line  to  be  run  from  the  upper  part  of  the  Chickasaw  Old 
Fields,  at  the  upper  point  of  an  island  called  Chickasaw  Island,  on  said  river,  to 
the  most  easterly  head  waters  of  that  branch  of  said  Tennessee  river  called  Duck 
river,  excepting  the  two  following  described  tracts,  viz.  one  tract  bounded  south- 
erly on  the  said  Tennessee  river,  at  a  place  called  the  Muscle  Shoals,  westerly 
by  a  creek  called  Tekeetanoeh,  or  Cyprus  creek,  and  easterly  by  Chuwalee,  or 
Elk  river  or  creek,  and  northerly  by  a  line  to  be  drawn  from  a  point  on  said  Elk 
river,  ten  miles  on  a  direct  line  from  its  mouth  orjunction  with  Tennessee  river, 
to  a  point  on  the  said  Cyprus  creek,  ten  miles  on  a  direct  line  from  its  junction 
with  the  Tennessee  river. 

The  pther  tract  is  to  be  two  miles  in  width,  on  the  north  side  of  Tennessee 
river,  and  to  extend  northerly  from  that  river  three  miles,  and  bounded  as  fol- 
lows, viz.  beginning  at  the  mouth  of  Spring  creek,  and  running  up  said  creek 
three  miles  on  a  straight  line,  thence  westerly  two  miles  at  right  angles  with  the 
general  course  of  said  creek,  thence  southerly,  on  a  line  parallel  with  the  general 
course  of  said  creek,  to  the  Tennessee  river,  thence  up  said  river  by  its  wa- 
ters to  the  beginning:  which  first  reserved  tract  is  to  be  considered  the  common 
property  of  the  Cherokees  who  now  live  on  the  same,  including  John  D.  Ches- 
holm,  Autowwe,  and  Chechout;  and  the  other  reserved  tract,  on  which  Moses 
Melton  now  lives,  is  to  be  considered  the  property  of  said  Melton  and  Charles 
Hicks,  in  equal  shares. 

And  the  said  chiefs  and  head  men  also  agree  to  relinquish  to  the  United  States 
all  right  or  claim  which  they  or  their  nation  have  to  what  is  called  the  Long 
Island,  in  Holston  river. 

Art,  2.  The  said  Henry  Dearborn,  on  the  part  of  the  United  States,  hereby 
stipulates  and  agrees,  that  in  consideration  of  the  relinquishment  of  the  title  by 
the  Cherokees,  as  stated  in  (he  preceding  article,  the  United  Slates  will  pay  to 
the  Cherokee  nation  two  thousand  dollars  in  money,  as  soon  as  this  convention 
shall  be  duly  ratitied  by  the  government  of  the  Uniled  States;  and  two  thousand 
dollars  in  each  of  the  four  succeeding  years,  amounting  in  the  whole  to  ten 
thousand  dollars;  and  that  a  grist  mill  shall,  within  one  year  from  the  date  hereof, 
be  built  in  the  Cherokee  country,  for  the  use  of  the  nation,  at  such  place  as  shall 
be  considered  most  convenient;  that  the  said  Cherokees  shall  be  furnished  with 
a  machine  for  cleaning  cotton;  and  also,  that  the  old  Cherokee  chief,  called  the 
Black  Fo.\-,  shall  be  paid  annually  one  hundred  dollars  by  the  United  States  during 
his  life. 

Art.  3.  It  is  also  agreed  on  the  part  of  the  United  Slates,  that  the  government 
thereof  v.ill  use  its  influence  and  best  endeavours,  to  pie  vail  on  the  Chickasaw 
nation  of  Indians,  to  agree  to  the  following  boundary  between  that  nation  and 
the  Cherokees,  to  the  southvvard  of  the  Tennessee  river,  viz.  beginning  at  the 
mouth  of  Caney  creek,  near  the  lower  part  of  the  Muscle  Shoals,  and  to  run  up 
the  said  creek  to  its  head,  and  in  a  direct  line  from  thence  to  the  Flat  Stone  or 
Rock,  the  old  corner  bcundai-y. 

But  it  is  understood  by  the  contracting  parlies,  that  the  United  States  do  not 
engage  to  have  the  aforesaid  line  or  boundary  established,  but  only  to  endeavour 
to  prevail  on  the  Chickasaw  nation  to  consent  to  such  a  line  as  the  boundary  be- 
tween the  two  nations. 

Art.  4.  It  is  further  agreed  on  the  part  of  the  United  States,  that  the  claims 
which  the  Chickasaws  may  have  to  the  two  tracts  reserved  by  the  first  article  of 


APPENDIX.  261 

[The  Cherokee  Nation  us.  The  State  of  Georgia.] 

this  convention  on  the  north  side  of  the  Tennessee  river,  shall  be  settled  by  the 
United  States  in  such  manner  as  will  be  equitable,  and  will  secure  to  the  Chero- 
kees  the  title  to  the  said  reservations. 

Done  at  the  place,  and  on  the  day  and  year  first  above  written*. 

Signed  and  sealed  by  Henry  Dearborn,  secretary  at  war,  and  by  sixteen  chiefs 
and  warriors  of  the  Cherokee  nation. 


Elucidation  of  the  convention  of  Washington,  of  the  Ith  of  January  1806. 

Whereas,  by  the  first  article  of  a  convention  between  the  United  States  and 
the  Cherokee  nation,  entered  into  at  the  city  of  Washington,  on  the  7th  day  of 
January  one  thousand  eight  hundred  and  six,  it  was  intended  on  the  part  of  the 
Cherokee  nation,  and  so  understood  by  the  secretary  of  war,  the  commissioner 
on  the  part  of  the  United  States,  to  cede  to  the  United  States  all  the  right,  title, 
and  interest  which  the  said  Clierokee  nation  ever  had  to  a  tract  of  country  con- 
tained between  the  Tennessee  river  and  the  Tennessee  ridge  (so  called);  which 
tract  of  country  had,  since  the  year  one  thousand  seven  hundred  and  ninety-four, 
been  claimed  by  the  Cherokees  and  the  Chickasaws;  the  eastern  boundary 
whereof  is  limited  by  a  line  so  to  be  run  from  the  upper  part  of  the  Chickasaw 
Old  Fields,  as  to  include  ail  the  waters  of  Elk  river,  any  thing  expressed  in  said 
convention  to  the  contrary  notwithstanding.  It  is  therefore  now  declared,  by 
James  Robertson  and  Return  J.  Meigs,  acting  under  the  authority  of  the  execu- 
tive of  the  United  States,  and  by  a  delegation  of  Cherokee  chiefs,  of  whom 
Eunolee,  or  Black  Fox,  the  king  or  head  chief  of  said  Clierokee  nation,  acting  on 
the  part  of  and  in  behalf  of  said  nation,  is  one,  that  the  eastern  limits  of  said 
ceded  tract  shall  be  bounded  by  a  line  so  to  be  run  from  the  upper  end  of  the 
Chickasaw  Old  Fields,  a  little  above  the  upper  point  of  an  island  called  Chicka- 
saw island,  as  will  most  diiectly  intersect  the  tirst  waters  of  Elk  river,  thence 
carried  to  the  great  Cumberland  mountain,  in  which  the  waters  of  Elk  river  have 
their  source;  then  along  tlie  margin  of  said  mountain,  until  it  shall  intersect  lands 
heretofore  ceded  to  the  United  States,  at  the  said  Tennessee  ridge.  And  in  con- 
sideration of  the  readiness  shown  by  the  Cherokees  to  explain,  and  to  place  the 
limits  of  the  land  ceded  by  the  said  convention  out  of  aJl  doubt,  and  in  considera- 
tion of  their  expenses  in  attending  council,  the  executive  of  the  United  States 
will  direct  that  the  Cherokee  nation  shall  receive  the  sum  of  two  thousand  dol- 
lars, to  be  paid  to  them  by  their  agent  at  such  time  as  the  said  executive  shall 
direct;  and  that  the  Cherokee  hunters,  as  hath  been  the  cusiom  in  such  cases, 
may  hunt  on  said  ceded  tract,  until,  by  the  fullness  of  settlers,  it  shall  become 
improper.  And  it  is  hereby  declared  by  the  parties  that  this  explanation  ought 
to  be  considered  as  a  just  elucidation  of  the  cession  made  by  the  first  article  of 
said  convention. 

Done  at  the  point  of  departure  of  the  line  at  the  upper  end  of  the  island  oppo- 
site to  the  upper  part  of  the  said  Chickasaw  Old  Fields,  the  eleventh  day  of  Sep- 
tember in  the  year  one  thousand  eight  hundred  and  seven. 

Signed  and  sealed  by  the  agents  of  the  United  States,  and  by  five  chiefs  of  the 
Cherokee  nation. 

*  It  does  not  appear  by  the  treaty  that  there  is  any  place,  day,  or  year,  "  first 
above  written."  But  the  proclamation  of  the  convention,  by  the  president  of  the 
United  States,  declares  that  it  was  "  concluded  at  thecity  of  Washington,  on  the 
7th  day  of  January  1806." 


262  APPENDIX. 

[The  Cherokee  Nation  vs.  The  Slate  of  Georgia.] 

TREATY  OF  22  MARCH  1816. 

Jlrticles  of  a  treaty  made  and  concluded  at  the  city  of  Washington,  on  the 
ttventy-second  day  of  March  one  thousand  eight  hundred  and  sixteen,  be- 
tween George  Graham,  being  specially  authorized  by  the  president  of  the 
United  States  thereto,  and  the  undersigned  chiefs  aiid  head  men  of  the 
Cherokee  nation,  duly  authorized  and  empowered  by  the  said  nation. 

Art.  1.  Whereas  the  executive  of  tlie  state  of  South  Carolina  has  made  an  ap- 
plication to  the  president  of  the  United  States  to  extinguish  the  claim  of  the 
Cherokee  nation  to  that  part  of  their  lands  which  lie  within  the  boundaries  of 
the  said  state,  as  lately  established  and  agreed  upon  between  that  state  and  the 
state  of  North  Carolina;  and  as  the  Cherokee  nation  is  disposed  to  comply  with 
the  wishes  of  their  brothers  of  South  Carolina,  they  have  ogreed  and  do  hereby 
agree  to  cede  to  the  state  of  South  Carolina,  and  for  ever  quit  claim  to  the  tract 
of  country  contained  within  the  following  bounds,  viz.  beginning  on  the  east 
bank  of  the  Chattuga  river,  where  the  boundary  line  of  the  Cherokee  nation 
crosses  the  same,  running  thence  with  the  said  boundary  line  to  a  rock  on  the 
blue  ridge,  where  the  boundary  line  crosses  the  same,  and  which  rock  has  been 
lately  established  as  a  corner  to  the  states  of  North  and  South  Carolina,  running 
thence  south  sixty-eight  and  a  quarter  degrees,  west  twenty  miles  and  thirty- 
two  chains  to  a  rock  on  the  Chattuga  river,  at  the  thirty-fifth  degree  of  north 
latitude,  another  corner  of  the  boundaries  agreed  upon  by  the  states  of  North 
and  South  Carolina,  thence  down  and  with  the  Chattuga  to  the  beginning. 

Art.  2.  For  and  in  consideration  of  the  above  cession,  the  United  States  prom- 
ise and  engage  that  the  state  of  South  Carolina  shall  pay  to  the  Cherokee  nation, 
or  its  accredited  agent,  the  sum  of  five  thousand  dollars  within  ninety  days  after 
the  president  and  senate  shall  have  ratified  this  treaty:  Provided,  that  the  Cher- 
okee nation  shall  have  sanctioned  the  same  in  council:  and  provided  also,  that 
the  executive  of  the  state  of  South  Carolina  shall  approve  of  the  stipulations 
contained  in  this  article. 

In  testimony  whereof,  the  said  commissioner,  and  the  undersigned  chiefs  and 
head  men  of  the  Cherokee  nation  have  hereunto  set  their  hands  and  seals. 

Signed  and  sealed  by  George  Giaham,  commissioner  of  the  United  States,  and 
by  six  chiefs  and  head  men  of  the  Cherokee  nation. 


TREATY  OF  22  MARCH  1816. 

Articles  of  a  convention  made  and  entered  into  between  George  Graham,  spe- 
cially authorized  thereto  by  the  president  of  the  United  States,  and  the  un- 
dersis^ned  chiefs  and  head  men  of  the  Cherokee  nation,  duly  authorized 
and  empowered  by  the  said  nation. 

Art.  1.  Whereas  doubts  have  existed  in  relation  to  the  northern  boundary  of 
that  part  of  the  Creek  lands  lying  west  of  the  Coosa  river,  and  which  were  ce- 
ded to  the  United  States  by  the  treaty  held  at  fort  Jackson,  on  the  ninth  day  of 
August  one  thousand  eight  hundred  and  fourteen:  and  whereas  by  the  third  ar- 
ticle of  the  treaty,  dated  the  seventh  of  January  one  thousand  eight  hundred 


APPENDIX.  263 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

and  six,  between  the  United  States  and  the  Cherokee  nation,  the  United  States 
have  recognized  a  claim  on  the  part  of  the  Cherokee  nation  to  the  lands  south 
of  the  big  bend  of  the  Tennessee  river,  and  extending  as  far  west  as  a  place  on 
the  waters  of  Bear  creek  [a  branch  of  the  Tennessee  river],  known  by  the  name 
of  the  Flat  Rock  or  stone:  it  is,  therefore,  now  declared  and  agreed,  that  a  line 
shall  be  run  from  a  point  on  the  west  bank  of  the  Coo?a  river,  opposite  to  the 
lower  end  of  the  ten  islands  in  said  river,  and  above  fort  Strother,  direclly  to  the 
Flat  Rock  or  stone  on  Bear  creek  [a  branch  of  ihe  Tennessee  liver]:  which 
line  shall  be  established  as  the  boundary  of  the  lands  ceded  by  the  Creek  nation 
to  the  United  States  by  the  treaty  held  at  fort  Jackson,  on  the  ninth  day  of  Au- 
gust one  thousand  eight  hundred  and  fourteen,  and  of  the  lands  claimed  by  the 
Cherokee  nation,  lying  west  of  the  Coosa,  and  south  of  the  Tennessee  liveis. 

Art.  2.  It  is  expressly  agreed  on  the  part  of  the  Cherokee  nation,  that  the 
United  States  shall  have  the  right  to  lay  off,  open,  and  have  the  free  u=e  of  such 
road  or  roads,  through  any  pait  of  the  Cherokee  nation,  lying  north  of  the  boun- 
dary line  now  established,  as  may  be  deemed  necessary  for  the  free  intercourse 
between  the  states  of  Tennessee  and  Georgia,  and  the  Mississippi  territory.  And 
the  citizens  of  the  United  States  shall  freely  navigate  and  use,  as  a  highway, 
all  Ihe  rivers  and  waters  within  the  Cherokee  nation.  The  Cherokee  nation  fur- 
ther agree  to  establish  and  keep  up,  on  the  roads  to  be  opened  under  the  sanc- 
tion of  this  article,  such  feiries  and  public  houses  as  may  be  necessary  for  the 
accommodation  of  the  citizens  of  Ihe  United  Stales. 

Art.  3.  In  order  to  preclude  any  dispute  hereafter,  relative  to  the  boundary 
line  now  established,  it  is  hereby  agreed  that  the  Cherokee  nation  shall  appoint 
two  commissioners  to  accompany  the  commissioners  already  appointed  on  the 
part  of  the  United  States,  to  run  the  boundary  lines  of  the  lands  ceded  by  the 
Creek  nation  to  the  United  Slates,  while  they  are  engaged  in  running  that  part  of 
the  boundary  established  by  the  first  article  of  this  treaty. 

Art.  4.  In  order  to  avoid  unnecessary  expense  and  delay,  it  is  further  agreed, 
that  whenever  the  president  of  the  United  States  may  deem  it  expedient  to  open 
a  road  through  any  part  of  the  Cherokee  nation,  in  pursuance  of  the  stipulations 
of  the  second  article  of  this  convention,  the  principal  chief  of  the  Cherokee  na- 
tion, shall  appoint  one  commissioner  to  accompany  the  commissioners  appointed 
by  the  president  of  the  United  States,  to  lay  off  and  mark  the  road;  and  the  said 
commissioners  shall  be  paid  by  the  United  Stales. 

Art.  5.  The  United  States  agree  to  indemnify  the  individuals  of  the  Cherokee 
nation  for  losses  sustained  by  them  in  consequence  of  the  march  of  the  militia 
and  other  troops  in  the  service  of  the  United  States  through  that  nation;  which 
losses  have  been  ascertained  by  the  agents  of  the  United  States  to  amount  to 
twenty-five  thousand  five  hundred  dollars. 

In  testimony  whereof,  the  said  commissioner,  and  the  undersigned  chiefs  and 
head  men  of  the  Cherokee  nation,  have  hereunto  set  their  hands  and  seals. 
Done  at  the  city  of  Washington,  this  twenty-second  day  of  March  one  thousand 
eight  hundred  and  sixteen. 

Signed  and  sealed  by  George  Graham,  commissioner  of  the  United  States,  and 
by  six  chiefs  and  head  men  of  the  Cherokee  nation. 


364  APPENDIX. 

[The  Cherokee  Nation  t>».  The  State  of  Georgia.] 

TREATY  OF  14  SEPTEMBER  1816. 

To  perpetuate  peace  and  friendship  between  the  United  States  and  Cherokee 
tiibe,  or  nation,  of  Indians,  and  to  remove  all  future  causes  of  dissension  which 
may  arise  from  indefinite  territorial  boundaries,  the  president  of  the  United  States 
of  America,  by  major  general  Andiew  Jackson,  general  David  Meriwether,  and 
Jesse  Franklin,  esquire,  commissioners  plenipotentiary  on  the  one  part,  and  the 
Cherokee  delegates  on  the  other,  covenant  and  agree  to  the  following  articles 
and  conditions,  which,  when  approved  by  the  Cherokee  nation,  and  constitution- 
ally ratified  by  the  government  of  the  United  States,  shall  be  binding  on  all  par- 
ties: 

Art.  1.  Peace  and  friendship  are  hereby  firmly  established  between  the  United 
States  and  Cherokee  nation  or  tribe  of  Indians. 

Art.  2.  The  Cherokee  nation  acknowledge  the  following  as  their  western  boun- 
dary: South  of  the  Tennessee  river,  commencing  at  Camp  Coffee,  on  the  south 
side  of  the  Tennessee  river,  which  is  opposite  the  Chickasaw  Island,  running 
from  thence  a  due  south  course  to  the  top  of  the  dividing  ridge  between  the  wa- 
ters of  the  Tennessee  and  Tombigbee  rivers,  thence  eastwardly  along  said  ridge, 
leaving  the  head  waters  of  the  Black  Warrior  to  the  right  hand,  until  opposed  by 
the  west  branch  of  Will's  Creek,  down  the  east  bank  of  said  creek  to  the  Coosa 
river,  and  down  said  river. 

Art.  .3.  The  Cherokee  nation  relinquish  to  the  United  States  all  claim,  and 
cede  all  title  to  lands  lying  south  and  west  of  the  line,  as  described  in  the  sec- 
ond article;  and,  in  consideration  of  said  relinquishment  and  cession,  the  com- 
missioners agree  to  allow  the  Cherokee  nation  an  annuity  of  six  thousand  dollars, 
to  continue  for  ten  successive  years,  and  five  thousand  dollars,  to  be  paid  in  six- 
ty days  after  the  ratification  of  the  treaty,  as  a  compensation  for  any  improve- 
ments which  the  said  nation  may  have  had  on  the  lands  surrendered. 

Art.  4.  The  two  contracting  parties  covenant,  and  agree,  that  the  line,  as  de- 
scribed in  the  second  article,  shall  be  ascertained  and  marked  by  commissioners, 
to  be  appointed  by  the  president  of  the  United  States;  that  the  marks  shall  be 
bold;  trees  to  be  blazed  on  both  sides  of  the  line,  and  the  fore  and  aft  trees  to  be 
marked  with  the  letters  U.  S.;  that  the  commissioners  shall  be  accompanied  by 
two  persons,  to  be  appointed  by  the  Cherokee  nation,  and  that  said  nation  shall 
have  due  and  seasonable  notice  when  said  operation  is  to  be  commenced. 

Art.  5.  It  is  stipulated  that  the  Cherokee  nation  will  meet  general  Andrew 
Jackson,  general  David  Meriwether,  and  Jesse  Franklin,  esquire,  in  council,  at 
Turkey's  Town,  Coosa  river,  on  the  28th  of  September  instant,  there  and  then 
to  express  their  approbation,  or  not,  of  the  articles  of  this  treaty;  and  if  they  do 
not  assemble  at  the  time  and  place  specified,  it  is  understood  that  the  said  com- 
missioners may  report  the  same  as  a  tacit  ratification,  on  the  part  of  the  Chero- 
kee nation,  of  this  treaty. 

In  testimony  whereof,  the  said  commissioners,  and  undersigned  chiefs  and 
delegates  of  the  Cherokee  nation,  have  hereto  set  their  hands  and  seals.  Done 
at  the  Chickasaw  council  house,  this  fourteenth  day  of  September  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  sixteen. 

Signed  and  sealed  by  the  commissioners  of  the  United  States,  and  by  fifteen 
chiefs  and  delegates  of  the  Cherokee  nation. 


APPENDIX.  365 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

This  treaty  was  afterwards  ratified  at  Turlcey  Town,  by  the  whole  Cheroltee 
nation  in  council  assembled.  In  testimony  whereof,  the  commissioners,  and 
ten  chiefs  and  warriors  of  the  Cherokee  nation,  affixed  their  hands,  on  the  4th  of 
October  1S16. 


TREATY  OF  8  JULY  1817. 

Jirtides  of  a  treaty  concluded  at  the  Cherokee  Agency,  within  the  Cherokee 
nation,  between  major  general  Andrew  Jackson,  Joseph  M' Minn,  governor 
of  the  stale  of  Tennessee,  and  general  David  Meriwether,  commissioners 
plenipotentiary  of  the  United  States  of  America,  of  the  one  part;  and  the 
chiefs, head  men  and  warriors  oftheCherokee  nation,  east  of  the  Mississippi 
river,  and  the  chiefs,  head  men  and  warriors  of  the  Cherokees  on  the  Ar- 
kansas river,  and  their  deputies,  John  D.  Chisholm  and  James  Rodgers,  duly 
authorized  by  the  chiefs  of  the  Cherokees  on  the  Arkansas  river,  in  open 
council,  by  writtenpower  of  attorney,  duly  signed  and  executed,  in  presence 
of  Joseph  Sevier  and  William  Ware. 

Whereas,  in  the  autumn  of  the  year  one  thousand  eight  hundred  and  eight,  a 
deputation  from  the  Upper  and  Lower  Cherokee  towns,  duly  authorised  by  their 
nation,  went  on  to  the  city  of  Washington,  the  first  named  to  declare  to  the  presi- 
dent of  the  United  States  their  anxious  desire  to  engage  in  the  pursuits  of  agri- 
culture and  civilized  life,  in  the  country  they  then  occupied,  and  to  make  known 
to  the  president  of  the  United  States  the  impracticability  of  inducing  the  nation 
at  large  to  do  this,  and  to  request  the  establishment  of  a  division  line  between 
the  upper  and  lower  towns,  so  as  to  include  all  the  waters  of  the  Hiwassee  river 
to  the  upper  town,  that,  by  thus  contracting  their  society  within  narrow  limits, 
they  proposed  to  begin  the  establishment  of  fixed  laws  and  a  regular  govern- 
ment :  The  deputies  from  the  lower  towns  to  make  known  their  desire  to  continue 
the  hunter  life,  and  also  the  scarcity  of  game  where  they  then  lived;  and,  undei 
those  circumstances,  their  wish  to  remove  across  the  Mississippi  liver,  on  some 
vacant  lands  of  the  United  States.  And  whereas,  the  president  of  the  United 
States,  after  maturely  considering  the  petitions  of  both  parties,  on  the  ninth  day 
of  January.  A.D.  one  thousand  eight  hundred  and  nine,  including  other  subjects, 
answered  those  petitions  as  follows:  "The  United  States,  my  children,  are  the 
friends  of  both  parties;  and,  as  far  as  can  be  reasonably  asked,  they  are  willing  to 
satisfy  the  wishes  of  both.  Those  who  remain  may  be  assured  of  our  patronage, 
our  aid,  and  good  neighbourhood.  Those  who  wish  to  remove  are  permitted  to 
send  an  exploring  party  to  reconnoitre  the  country  on  the  waters  of  the  Arkansas 
and  White  rivers,  and  the  higher  up  the  better,  as  they  will  be  the  longer  unap- 
preached  by  our  settlements,  which  will  begin  at  the  mouths  of  those  rivers^ 
The  regular  districts  of  the  government  of  St  Louis  are  already  laid  off  to  the 
St  Francis. 

•'  When  this  party  shall  have  found  a  tract  of  country  suiting  the  emigrants, 
and  not  claimed  by  other  Indians,  we  will  arrange  with  them  and  you  the  ex- 
change of  that  for  a  just  portion  of  the  country  they  leave,  and  to  a  part  of  which, 
proportioned  to  their  numbers,  they  have  a  right.  Every  aid  towards  their  re- 
moval, and  what  will  be  necessary  for  them  there,  will  then  be  freely  administered 
to  them;  and  when  established  in  their  new  settlements,  we  shall  still  considec 
21 


266  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 
them  as  our  children,  give  them  the  benefit  of  exchanging  their  peltries  for  what 
they  will  want  at  our  factories,  and  always  hold  them  firmly  by  the  hand. 

And  whereas  the  Cherokees,  relying  on  the  promises  of  the  president  of  the 
United  States,  as  above  recited,  did  explore  the  country  on  the  west  side  of  the 
Mississippi,  and  made  choice  of  the  country  on  the  Arkansas  and  White  rivers, 
and  settled  themselves  down  upon  the  United  States  lands,  to  which  no  other 
tribe  of  Indians  have  any  just  claim,  and  have  duly  notified  the  president  of  the 
United  States  thereof,  and  of  their  anxious  desire  for  the  full  and  complete  ratifi- 
cation of  his  promise;  and,  to  that  end,  as  notified  by  the  president  of  the  United 
States,  have  sent  on  their  agents,  with  full  powers  to  execute  a  treaty,  relinquish- 
ing to  the  United  States  all  the  right,  title,  and  interest  to  all  lands  of  right  to 
them  belonging,  as  part  of  the  Cherokee  nation,  which  they  have  left,  and  which 
they  are  about  to  leave,  proportioned  to  their  numbers,  including,  with  those 
now  on  the  Arkansas,  those  who  are  about  to  remove  thither,  and  to  a  portion 
of  which  they  have  an  equal  right  agreeably  to  their  numbers. 

Now,  know  ye,  that  the  contracting  parties,  to  carry  into  full  effect  the  before 
recited  promises  with  good  faith,  and  to  promote  a  continuation  of  friendship 
with  their  brothers  on  the  Arkansas  river,  and  for  that  purpose  to  make  an  equal 
distribution  of  the  annuities  secured  to  be  paid  by  the  United  States  to  the  whole 
Cherokee  nation,  have  agreed  and  concluded  on  the  following  articles,  viz. 

Art.  1.  The  chiefs,  head  men  and  warriors  of  the  whole  Cherokee  nation  cede 
to  the  United  States  ail  the  lands  lying  north  and  east  of  the  following  boun- 
daries, viz.  Beginning  at  the  high  shoals  of  the  Appalachy  river,  and  running 
thence  along  the  boundary  line  between  the  Creek  and  Cherokee  nations,  west- 
wardly  to  the  Chatahouchy  river;  thence  up  the  Chatahouchy  river  to  the  mouth 
of  Souque  creek;  thence,  continuing  with  the  general  course  of  the  river  until  it 
reaches  the  Indian  boundary  line,  and,  should  it  stiike  the  Turrurar  river,  thence, 
with  its  meanders,  down  said  river  to  its  mouth,  in  part  of  the  proportion  of  land 
ID  the  Cherokee  nation  east  of  the  Mississippi,  to  which  those  now  on  the  Ar- 
kansas and  those  about  to  remove  there,  are  justly  entitled. 

Art.  2.  The  chiefs,  head  men  and  warriors  of  the  whole  Cherokee  nation  do 
also  cede  to  the  United  States  all  the  lands  lying  north  and  west  of  the  following 
boundary  lines,  viz.  Beginning  at  the  Indian  boundary  line  that  runs  from  the 
north  bank  of  the  Tennessee  river,  opposite  to  the  mouth  of  Hywassee  river,  at 
a  point  on  the  top  of  Walden's  ridge,  where  it  divides  the  waters  of  the  Ten- 
nessee river,  from  those  of  the  Sequatchie  river;  thence  along  the  said  ridge, 
southwardly,  to  the  bank  of  the  Tennesse  river,  at  a  point  near  to  a  place  called 
the  Negro  Sugar  Camp,  opposite  to  the  upper  end  of  the  first  island  above  Run- 
ning Water  Town;  thence,  westwardly,  a  straight  line  to  the  mouth  of  Little 
Sequatchie  river;  thence,  up  said  river,  to  its  main  fork;  thence,  up  its  northern- 
most fork,  to  its  source;  and  thence,  due  west,  to  the  Indian  boundary  line. 

Art.  3.  It  is  also  stipulated  by  the  contracting  parties,  that  a  census  shall  be 
taken  of  the  whole  Cherokee  nation,  during  the  month  of  June,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  eighteen,  in  the  following  manner,  viz. 
That  the  census  of  those  on  the  east  side  of  the  Mississippi  river,  who  declare 
their  intention  of  removing,  shall  be  taken  by  a  commissioner  appointed  by  the 
president  of  the  United  States,  and  a  commissioner  appointed  by  the  Chero- 
kees on  the  Arkansas  river;  and  the  census  of  the  Cherokees  on  the  Arkansas 
river,  and  those  removing  there,  and  who,  at  that  time,  declare  their  inten- 
tion of  removing  there,  shall  bo.  taken  by  a  conunissioner  appointed  by  the  presi- 
dent of  the  United  States,  and  one  appointed  by  the  Cherokees  east  of  the 
Mississippi  river. 


APPENDIX.  267 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

Art.  4.  The  contracting  parties  do  also  stipulate  that  the  annuity  due  from  the 
United  States  to  the  whole  Cherokee  nation  for  the  year  one  thousand  eight 
hundred  and  eighteen,  is  to  be  divided  between  the  two  parts  of  the  nation,  in 
proportion  to  their  numbers,  agreeably  to  the  stipulations  contained  in  the  third 
article  of  this  treaty;  and  to  be  continued  to  be  divided  thereafter  in  proportion 
to  their  numbers;  and  the  lands  to  be  apportioned  and  surrendered  to  the  United 
States,  agreeably  to  the  aforesaid  enumeration,  as  the  proportionate  part,  agreea- 
bly to  their  numbers,  to  which  those  v;ho  have  removed,  and  who  declare  their 
intention  to  remove,  have  a  just  right,  including  these  with  the -lands  ceded  in 
the  first  and  second  articles  of  this  treaty. 

Art.  5.  The  United  States  bind  themselves,  in  exchange  for  the  lands  ceded 
in  the  first  and  second  articles  hereof,  to  give  to  that  part  of  the  Cherokee  nation 
on  the  Arkansas,  as  much  land  on  said  river  and  Wliite  river  as  they  have  or  may 
hereafter  receive  from  the  Cherokee  nation  east  of  the  Mississippi,  acre  for  acre, 
as  the  just  proportion  due  that  part  of  the  nation  on  the  Arkansas,  agreeably  to 
their  numbers;  which  is  to  commence  on  the  north  side  of  the  Arkansas  river,  at 
the  mouth  of  Point  Remove,  or  Budwell's  Old  Place;  thence,  by  a  straight  line, 
northwardly,  to  strike  Chataunga  mountain,  or  the  hill  first  above  Shield's  Ferry, 
on  White  river,  running  up  and  between  said  rivers  for  compliment,  the  banks  of 
which  rivers  to  be  the  lines;  and  to  have  the  above  line,  from  the  point  of  begin- 
ning to  the  point  on  White  river,  run  and  marked,  which  shall  be  done  soon 
after  the  ratification  of  this  treaty;  and  all  citizens  of  the  United  States,  except 
Mrs  P.  Lovely,  who  is  to  remain  where  she  lives  during  life,  removed  from  within 
the  bounds  as  above  named.  And  it  is  further  stipulated,  that  the  treaties  here- 
tofore between  the  Cherokee  nation  and  the  United  States  are  to  continue  in 
full  force  with  both  parts  of  the  nation,  and  both  parts  thereof  entitled  to  all  the 
immunities  and  privileges  which  the  old  nation  enjoyed  under  the  aforesaid  trea- 
ties; the  United  States  reserving  the  tight  of  establishing  factories,  a  military 
post,  and  roads,  within  the  boundaries  above  defined. 

Art.  6.  The  United  States  do  also  bind  themselves  to  give  to  all  the  poor 
warriors  who  may  remove  to  the  western  side  of  the  Mississippi  river,  one  rifle 
gun  and  ammunition;  one  blanket  and  one  brass  kettle;  or,  in  lieu  of  the  brass 
kettle,  a  beaver  trap;  which  is  to  be  considered  as  a  full  compensation  for  the 
improvements  which  they  may  leave;  which  articles  are  to  be  delivered  at  such 
point  as  the  president  of  the  United  States  may  direct:  and  to  aid  in  the  removal 
of  the  emigrants  they  further  agree  to  furnish  flat  bottomed  boats  and  provisions 
sufficient  for  that  purpose:  and  to  those  emigrants  whose  improvements  add  real 
value  to  their  lands,  the  United  States  agree  to  pay  a  full  valuation  for  the  same, 
which  is  to  be  ascertained  by  a  commissioner  appointed  by  the  president  of  the 
United  States  for  that  purpose,  and  paid  for  as  soon  after  the  ratification  of  this 
treaty  as  practicable.  The  boats  and  provisions  promised  to  the  emigrants  are 
to  be  furnished  by  the  agent  on  the  Tennessee  river,  at  such  time  and  place  as 
the  emigrants  may  notify  him  of;  and  it  shall  be  his  duty  to  furnish  the  same. 

Art.  7.  And  for  all  improvements  which  add  real  value  to  the  lands  lying  within 
the  boundaries  ceded  to  the  United  States,  by  the  first  and  second  articles  of  this 
treaty,  the  United  States  do  agree  to  pay  (or  at  the  time,  and  to  be  valued  in  the 
same  manner,  as  stipulated  in  the  sixth  article  of  this  treaty;  or,  in  lieu  thereof, 
to  give  in  exchange  improvements  of  equal  value  which  the  emigrants  may 
leave,  and  for  which  they  are  to  receive  pay.  And  it  is  farther  stipulated,  that 
all  these  improvements,  left  by  the  emigrants  within  the  bounds  of  the  Cherokee 
nation  east  of  the  Mississippi    river,  which  add  real  value  to  the  lands,  and  for 


268  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

which  the  United  States  shall  give  a  consideration,  and  not  so  exchanged,  shall 
be  rented  to  the  Indians  by  the  agent,  year  after  year,  for  the  benefit  of  the  poor 
and  decrepid  of  that  part  of  the  nation  east  of  the  Mississippi  river,  until  surren- 
dered by  the  nation,  or  to  the  nation.  And  it  is  further  agreed,  that  the  said 
Cherokee  nation  shall  not  be  called  upon  for  any  part  of  the  consideration  paid 
or  said  improvements  at  any  future  period. 

Art.  8.  And  to  each  and  every  head  of  any  Indian  family  residing  on  the  east 
side  of  the  Mississippi  river,  on  the  lands  that  are  now,  or  may  hereafter  be,  sur- 
rendered to  the  United  States,  who  may  wish  to  become  citizens  of  the  United 
Slates,  the  United  Stales  do  agree  to  give  a  reservation  of  six  hundred  and  forty 
acres  of  land,  in  a  square,  to  include  their  improvemenis,  which  are  to  be  as  near 
the  centre  thereof  as  practicable,  in  which  they  will  have  a  life  estate,  with  a 
reversion  in  fee  simple  to  their  children,  reserving  to  the  widow  her  dower,  the 
register  of  whose  n.imes  is  to  be  filed  in  the  office  of  the  Cherokee  agent,  which 
shall  be  kept  open  until  the  census  is  taken  as  stipulated  in  the  thiid  article  of 
this  treaty.  Provided,  that  if  any  of  the  heads  of  families,  for  whom  reserva- 
tions may  be  made,  should  remove  therefrom,  then,  in  that  case,  the  right  to 
revert  to  the  United  States.  And  provided  further,  that  the  land  which  may  be 
reserved  under  this  article  be  deducted  from  the  amount  which  has  been  ceded 
under  the  first  and  second  articles  of  this  treaty. 

Art.  9.  It  is  also  provided  by  the  contracting  parties,  that  nothing  in  the  fore- 
going articles  shall  be  construed  so  as  to  prevent  any  of  the  parties  so  contract- 
ing from  the  free  navigation  of  all  the  waters  mentioned  therein. 

Art.  10.  The  whole  of  the  Cherokee  nation  do  hereby  cede  to  the  United 
States  all  right,  title  and  claim  to  all  reservations  made  to  Doublehead  and  others, 
which  were  reserved  to  them  by  a  treaty  made  and  entered  into  at  the  city  of 
Washington,  bearing  date  the  seventh  of  January  one  thousand  eight  hundred 
and  six. 

Art.  11.  It  is  further  agreed  that  the  boundary  lines  of  the  lands  ceded  to  the 
United  States  by  the  first  and  second  articles  of  this  treaty,  and  the  boundary 
line  of  the  lands  ceded  by  the  United  States  in  the  fifth  article  of  this  treaty,  are 
to  be  run  and  marked  by  a  commissioner  or  commissioners  appointed  by  the 
president  of  the  United  States,  who  shall  be  accompanied  by  such  commission- 
ers as  the  Cherokees  may  appoint;  due  notice  thereof  to  be  given  to  the  nation. 
Art.  12.  The  United  States  do  also  bind  themselves  to  prevent  the  intrusion 
of  any  of  their  citizens  within  the  lands  ceded  by  the  first  and  second  articles  of 
this  treaty,  until  the  same  shall  be  ratified  by  the  president  and  senate  of  the 
United  States,  and  duly  promulgated. 

Art.  13.  The  contracting  parties  do  also  stipulate  that  this  treaty  shall  fake 
effect  and  be  obligatory  on  the  contracting  parties  so  soor  as  the  same  shall  be 
ratified  by  the  president  of  the  United  States,  by  and  with  the  advice  and  consent 
of  the  senate  of  the  United  States. 

In  witness  of  all  and  every  thing  herein  determined,  by  and  between  the 
before  recited  contracting  parties,  we  have,  in  full  and  open  council,  at  the  Che- 
rokee Agency,  this  eighth  day  of  July,  A.  D.  one  thousand  eight  hundred  and 
seventeen,  set  our  hands  and  seals. 

Signed  and  sealed  by  the  United  States  commissioners,  by  thirty-one  chiefs, 
head  men  and  warriors  of  the  Cherokee  nation  east  of  the  Mississippi  river,  and 
by  fifteen  chiefs,  head  men,  and  warriors  of  the  Cherokees  on  the  Arkansas 
river. 


i 


APPENDIX.  269 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

TREATY  OF  27  FEBRUARY  1819. 

Articles  of  a  Convention  made  between  John  C.  Calhoun,  secretary  of  war, 
being  especially  authorizfd  therefor  by  the  president  of  the  United  Slates, 
and  the  undersigned  chiefs  and  head  men  of  the  Cherokee  nation  of 
Indians,  duly  authorized  and  empowered  by  said  nation,  at  the  city  of 
Washington,  on  the  twenty- seventh  day  of  February  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  nineteen. 

Whereas  a  greater  part  of  the  Cherokee  nation  have  expressed  an  earnest  de- 
sire (0  remain  on  this  side  of  the  Mississippi,  and  being  desirous,  in  order  to  com- 
mence those  measures  which  they  deem  necessary  to  the  civilization  and  pre- 
servation of  their  nation,  that  the  treaty  between  the  United  States  and  them, 
signed  the  eighth  of  July  eighteen  hundred  and  seventeen,  might,  without  fur- 
ther delay,  or  the  trouble  or  expense  of  taking  the  census,  as  stipulated  in  the 
said  treaty,  be  finally  adjusted,  have  offered  to  cede  to  the  United  States  a  tract 
of  country  at  least  as  extensive  as  that  which  they  probably  are  entitled  to  under 
its  provisions,  the  contracting  parties  have  agreed  to  and  concluded  the  follow- 
ing articles: 

Art.  1.  The  Cherokee  nation  cedes  to  the  United  States  all  of  their  lands  lying 
north  and  east  of  the  following  line,  viz.  beginning  on  the  Tennessee  river, 
at  the  point  where  the  Cherokee  boundary  with  Madison  county,  in  the  Alabama 
territory,  joins  the  same ;  thence,  along  the  main  channel  of  said  river,  to  the 
mouth  of  the  Hiwassee ;  thence,  along  its  main  channel,  to  the  first  hill  which 
closes  in  on  said  river,  about  two  miles  above  Hiwassee  Old  Town  :  thence, 
along  the  ridge  which  divides  the  waters  of  the  Hiwassee  and  Little  Tellico,  to 
the  Tennessee  liver  at  Tallassee  ;  thence,  along  the  main  channel,  to  the  junc- 
tion of  the  Cowee  and  Nanteyalee  ;  thence,  along  the  ridge  in  the  fork  of  said 
river,  to  the  top  of  the  Blue  Ridge;  thv.ice,  along  the  Blue  Ridge,  to  the  Unicoy 
Turnpike  Road  ;  thence,  by  a  straight  line,  to  the  nearest  main  source  of  the 
Chestatee  ;  thence,  along  its  main  channel,  to  the  Chatahouchee  ;  and  thence  to 
the  Creek  boundary  ;  it  being  understood  that  all  the  islands  in  the  Chestatee, 
and  the  parts  of  the  Tennessee  and  Hiwassee  (with  the  exception  of  Jolly's 
Island,  in  the  Tennessee,  near  the  mouth  of  the  Hiwassee),  which  constitute  a 
portion  of  the  present  boundary,  belong  to  the  Cherokee  nation :  and  it  is  also 
understood,  that  the  reservations  contained  in  the  second  article  of  the  treaty  of 
Tellico,  signed  the  twenty-filth  October  eighteen  hundred  and  five,  and  a  tract 
equal  to  twelve  miles  square,  to  be  located  by  commencing  at  the  point  formed 
by  the  intersection  of  the  boundary  line  of  Madison  county  already  mentioned, 
and  the  north  bank  of  the  Tennessee  river;  thence,  along  the  said  line,  and  up 
the  said  river,  twelve  miles;  are  ceded  to  the  United  States,  in  trust  for  the  Che- 
rokee nation,  as  a  school  fund  ;  to  be  sold  by  the  United  States,  and  the  proceeds 
vested  as  is  hereafter  provided  in  the  fourth  article  of  this  treaty;  and  also,  that 
the  rights  vested  in  the  Unicoy  Turnpike  Company,  by  the  Cherokee  nation, 
according  to  certified  copies  of  the  instruments  securing  the  rights,  and  herewith 
annexed,  are  not  to  be  affected  by. this  treaty;  and  it  is  further  understood  and 
agreed  by  the  said  parties,  that  the  lands  hereby  ceded  by  the  Cherokee  nation, 
are  in  full  satisfaction  of  all  claims  which  the  United  States  have  on  them,  on 
account  of  the  cession  to  a  part  of  their  nation  who  have  or  may  hereafter  emi- 


270  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

grate  to  the  Arkansas ;  and  this  treaty  is  a  final  adjustment  of  that  of  the  eighth 
of  July  eighteen  hundred  and  seventeen. 

Alt.  2.  The  United  Sotes  agree  to  pay,  according  to  the  stipulations  contained 
in  the  treaty  of  the  eighth  of  July  eighteen  hundred  and  seventeen,. for  all  im- 
provements on  land  lying  within  the  country  ceded  by  the  Cherokee?,  which  add 
real  value  to  the  land,  and  do  agree  to  allow  a  reservation  of  six  hundred  and 
forty  acres  to  each  head  of  any  Indian  family  residing  witliiii  the  ceded  territory, 
those  enrolled  for  the  Arkansas  excepted,  who  choose  to  become  citizens  of  the 
United  States,  in  the  manner  stipulated  in  said  treaty. 

Art.  3.  It  is  also  understood  and  agreed  by  the  contracting  parties,  that  a  re- 
servation, in  fee  simple,  of  six  hundred  and  forty  acres  square,  with  the  exception 
of  Major  Walker's,  which  is  to  be  located  as  is  hereafter  provided,  to  include 
their  improvements,  and  which  are  to  be  as  near  the  centre  thereof  as  possible, 
shall  be  made  to  each  of  the  persons  whose  names  are  inscribed  on  the  certified 
list  annexed  to  this  treaty,  all  of  whom  are  believed  to  be  persons  of  industry,  and 
capable  of  managing  their  property  with  discretion,  and  have,  with  few  excep- 
tions, made  considerable  improvements  on  the  tracts  reserved.  The  reservations 
are  made  on  the  condition,  that  those  for  whom  they  are  intended  shall  notify, 
in  writing,  to  the  agent  for  the  Cherokee  nation,  within  six  months  after  the  ra- 
tification of  this  treaty,  that  it  is  their  intention  to  continue  to  reside  permanently 
on  the  land  reserved. 

The  reservation  for  Lewis  Ross,  so  to  be  laid  off  as  to  include  his  house,  and 
out- buildings,  and  ferry  adjoining  the  Clierokee  Agency,  reserving  to  the  United 
States  all  public  property  there,  and  the  continuance  of  the  said  Agency  where 
it  now  is,  during  the  pleasure  of  the  Government;  and  Major  Walker's,  so  as  to 
include  his  dwelling  house  and  ferry:  for  Major  Walker,  an  additional  reservation 
is  made,  of  six  hundred  and  forty  acres  square,  to  include  his  giist  and  saw  mill; 
the  land  is  poor,  and  principally  valuable  for  its  timber.  In  addition  to  the  above 
reservations,  the  following  are  made,  in  fee  simple;  the  persons  for  whom  they 
are  intended  not  residing  on  the  same:  To  Cabbin  Smith,  six  hundred  and  forty 
acres,  to  be  laid  off  in  equal  parts,  on  bot^  sides  of  his  ferry  on  Tellico,  common- 
ly called  Blair's  ferry;  to  John  Ross,  six  hundred  and  forty  acres,  to  be  laid  off 
so  as  to  include  the  Big  island  in  Tennessee  river,  being  the  first  below  Tellico — 
which  tracts  of  land  were  given  many  years  since,  by  the  Cherokee  nation,  to 
them;  to  Mrs  Eliza  Ross,  step  daughter  of  Major  Walker,  six  hundred  and  forty 
acres  square,  to  be  located  on  the  river  below  and  adjoining  Major  Walker's;  to 
Margaret  Morgan,  six  hundred  and  forty  acres  square,  to  be  located  on  the  west 
of,  and  adjoining,  James  Riley's  reservation;  to  George  Harlin,  six  hundred  and 
forty  acres  square,  to  be  located  west  of,  and  adjoining,  the  reservation  of  Mar- 
garet Morgan;  to  James  Lowry,  six  hundred  and  forty  acres  square,  to  be  located 
at  Crow  Mocker's  old  place,  at  the  foot  of  Cumberland  mountain;  to  Susanna 
Lowry,  six  hundred  and  forty  acres,  to  be  located  at  the  Toil  Bridge  on  Battle 
Creek;  to  Nicholas  Byers,  six  hundred  and  forty  acres,  including  the  Toqua 
island,  to  be  located  on  the  north  bank  of  the  Tennessee,  opposite  to  said  island. 

Art.  4.  The  United  States  stipulate  that  the  reservations,  and  the  tract  reserved 
for  a  school  fund,  in  the  first  article  of  this  treaty,  shall  be  surveyed  and  sold  in 
the  same  manner,  and  on  the  same  terms,  with  the  public  lands  of  the  United 
States,  and  the  proceeds  vested,  under  the  direction  of  tlie  President  of  the 
United  States,  in  the  stock  of  the  United  States,  or  such  other  stock  as  he  may 
^eem  most  advantageous  to  the  Cherokee  nation.  The  interest  or  dividend  on 
aaid  stock  shall  be  applied,  under  his  direction,  in  the  manner  which  he  shall 


APPENDIX.  271 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

judge  best  calculated  to  diffuse  the  benefits  of  education  among  the  Cherokee 
nation  on  this  side  of  the  Mississippi. 

Art.  5.  It  is  agreed  that  such  boundary  lines  as  may  be  necessary  to  designate 
the  lands  ceded  by  the  first  article  of  this  treaty,  may  be  run  by  a  commissioner 
or  commissioners,  to  be  appointed  by  the  president  of  the  United  States,  who 
shall  be  accompanied  by  such  commissioners  as  the  Cherokees  may  appoint,  due 
notice  thereof  to  be  given  to  the  nation;  and  that  the  leases  which  have  been 
made  under  the  treaty  of  the  eighth  July  eighteen  hundred  and  seventeen,  of 
land  lying  within  the  portion  of  country  reserved  to  the  Cherokees,  to  be  void; 
and  that  ail  white  people  who  have  intruded,  or  may  hereafter  intrude,  on  the 
lands  reserved  for  the  Cherokees,  shall  be  removed  by  the  United  States,  and 
proceeded  against,  according  to  the  provisions  of  the  act  passed  thirtieth  March 
eighteen  hundred  and  two,  entitled  "  an  act  to  regulate  trade  and  intercourse 
with  the  Indian  tribes,  and  to  preserve  peace  on  the  frontiers." 

Art.  6.  The  contracting  parties  agree,  that  the  annuity  to  the  Cherokee  nation 
shall  be  paid,  two-thirds  to  the  Cherokees  east  of  the  Mississippi,  and  one-third 
to  the  Cherokees  west  of  that  river,  as  it  is  estimated  that  those  who  have  emi- 
grated, and  who  have  enrolled  for  emigration,  constitute  one-third  of  the  whole 
nation;  but,  if  the  Cherokees  west  of  the  Mississippi  object  to  this  distribution, 
of  which  due  notice  shall  be  given  them,  before  the  expiration  of  one  year  after 
the  ratification  of  this  treatj',  then  the  census,  solely  for  distributing  the  annuity, 
shall  be  taken  at  such  times,  and  in  such  manner,  as  the  president  of  the  United 
States  may  designate.  * 

Art.  7.  The  United  States,  in  order  to  afford  the  Cherokees  who  reside  on  the 
lands  ceded  by  this  treaty,  time  to  cultivate  their  crop  next  summer,  and  for 
those  who  do  not  choose  to  take  reservations,  to  remove,  bind  themselves  to  pre- 
vent the  intrusion  of  their  citizens  on  the  ceded  land  before  the  first  of  January 
next. 

Art.  8.  This  treaty  to  be  binding  on  the  contracting  parties  so  soon  as  it  is  ra- 
tified by  the  President  of  the  United  States,  by  and  with  the  advice  and  consent 
of  the  Senate. 

Done  at  the  place,  and  on  the  day  and  year,  above  written. 

I  hereby  certify,  that  I  am,  either  personally,  or  by  information  on  which  I 
can  rely,  acquainted  with  the  persons  before  named  in  the  third  article,  all  of 
whom  I  believe  to  be  persons  of  industry,  and  capable  of  managing  their  pro- 
perty with  discretion;  and  who  have,  with  few  exceptions,  long  resided  on  the 
tracts  reserved,  and  made  considerable  improvements  thereon. 

RETURN  J.  MEIGS, 

Agent  in  the  Cherokee  Nation. 

Cherokee  Agency,  Hiwassee  Garrison. 
We,  the  undersigned  Chiefs  and  Counsellors  of  the  Cherokees  in  full  council 
assembled,  do  hereby  give,  grant  and  make  over,  unto  Nicholas  Byers  and 
David  Russell,  who  are  agents  in  behalf  of  the  states  of  Tennessee  and  Georgia, 
full  power  and  authority  to  establish  a  turnpike  company,  to  be  composed  of 
them,  the  said  Nicholas  and  David,  Arthur  Henly,  John  Lowry,  Atto,  and  one 
other  person,  by  them  to  be  hereafter  named,  in  behalf  of  the  state  of  Georgia; 
and  the  above  named  persons  are  authorized  to  nominate  five  proper  and  fit  per- 
sons, natives  of  the  Cherokees,  who,  together  with  the  white  men  aforesaid,  are 


272  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

to  constitute  the  company;  which  said  company,  when  thus  established,  are 
hereby  fully  authorized  by  us  to  lay  out  and  open  a  road  from  the  most  suitable 
point  on  the  Tennessee  river,  to  be  directed  the  nearest  and  best  way  to  the 
highest  point  of  navigation  on  the  Tugulo  river;  which  said  road,  when  opene^jj 
and  established,  shall  continue  and  remain  a  free  and  public  highway,  unmolested 
by  us,  to  the  interest  and  benefit  of  the  said  company,  and  their  successors  for 
the  full  term  of  twenty  years,  yet  to  come,  after  the  same  may  be  open  and 
complete;  after  which  time,  said  road,  with  all  its  advantages,  shall  be  surren- 
dered up,  and  revested  in,  the  said  Cherokee  Nation.  And  the  said  company 
shall  have  leave,  and  are  hereby  authorized,  to  erect  their  public  stands  or 
houses  of  entertainment,  on  said  road:  that  is  to  say,  one  at  each  end,  and  one  io 
the  middle,  or  as  nearly  so  as  a  good  situation  will  permit;  with  leave  also  to 
cultivate  one  hundred  acres  of  land  at  each  end  of  the  road,  and  fifty  acres  at  the 
middle  stand,  with  a  privilege  of  a  suflBciency  of  limber  for  the  use  and  consump- 
tion of  said  stands.  And  the  said  turnpike  company  do  hereby  agree  to  pay  the 
sum  of  one  hundred  and  sixty  dollars  yearly  to  the  Cherokee  nation,  for  the 
aforesaid  privilege,  to  commence  after  said  road  is  opened  and  in  complete  opera- 
tion. The  said  company  are  to  have  the  benefit  of  one  ferry  on  Tennessee  river, 
and  such  other  ferry  or  ferries  as  are  necessary  on  said  road;  and,  likewise,  said 
company  shall  have  the  exclusive  privilege  of  trading  on  said  road  during  the 
aforesaid  term  of  time- 
In  testimony  of  our  full  consent  to  all  and  singular  the  above  named  privileges 
and  advantages,  we]  have  hereunto  set  our  hands,  and  afl&xed  our  seals,  this 
eighth  day  of  March  eighteen  hundred  and  thirteen. 

The  foregoing  agreement  and  grant  was  amicably  negotiated  and  concluded 
in  my  presence. 

RETURN  J.  MEIGS. 


Cherokee  Agency,  January  6,  1817. 
We,  the  undersigned  Chiefs  of  the  Cherokee  nation,  do  hereby  grant  onto 
Nicholas  Byers,  Arthur  H.  Henly,  and  David  Russell,  proprietors  of  the  Unicoy 
road  to  Georgia,  the  liberty  of  cultivating  all  the  ground  contained  in  the  bend 
on  the  north  side  of  Tennessee  river,  opposite  and  below  Chota  Old  Town,  to- 
gether with  the  liberty  to  erect  a  grist  mill  on  Four  Mile  Creek,  for  the  use  and 
benefit  of  said  road,  and  the  Cherokees  in  the  neighbourhood  thereof;  for  them, 
the  said  Byers,  Henly,  and  Russell,  to  have  and  to  hold  the  above  privileges 
during  the  term  of  lease  of  the  Unicoy  road,  also  obtained  from  the  Cherokees 
and  sanctioned  by  the  President  of  the  United  States. 

The  above  instrument  was  executed  in  open  Cherokee  council,  in  my  office, 
in  January  1817. 

RETURN  J.  MEIGS. 
Cherokee  Agency,  8th  July  1817. 

The  use  of  the  Unicoy  road,  so  called,  was  for  twenty  years. 

RETURN  J.  MEIGS. 
Batified,  lOth  March,  1819. 


APPENDIX.  273 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

TREATY  OF  24  OCTOBER  1824. 

Articles  of  a  Treaty  between  the  United  States  of  America  and  the  Cherokee 

Indians. 

Daniel  Smith  and  Return  J.  Meigs,  being  commissioned  by  Thomas  Jefferson, 
President  of  the  United  States,  with  powers  of  acting  in  behalf  of  the  said 
United  States,  in  arranging  certain  matters  with  the  Cherokee  nation  of  Indians; 
and  the  underwritten  principal  chiefs,  representing  the  said  nation,  having  met 
the  said  commissioners  in  a  conference  at  Teliico,  and  having  taken  into  their 
consideration  certain  propositions  made  to  them  by  the  said  commissioners  of 
the  United  States;  the  parties  aforesaid  have  unanimously  agreed  and  stipulated* 
as  is  definitely  expressed  in  the  following  articles: 

Art.  1.  For  the  considerations  hereinafter  expressed,  the  Cherokee  nation  re- 
linquish and  cede  to  the  United  States,  a  tract  of  land  bounding  southerly  on 
the  boundary  line  between  the  state  of  Georgia  and  the  said  Cherokee  nation, 
beginning  at  a  point  on  the  said  boundary  line  northeasterly  of  the  most  north- 
east plantation,  in  the  settlement  known  by  the  name  of  Wafford's  settlement, 
and  running  at  right  angles  with  the  said  boundary  line  four  miles  in  the  Chero> 
kee  lands;  thence,  at  right  angles,  southwesterly,  and  parallel  to  the  first 
mentioned  boundary  line,  so  far  as  that  a  line,  to  be  run  at  right  angles  southerly 
to  the  said  first  mentioned  boundary  line,  shall  include,  in  this  cession,  all  ths 
plantations  in  Wafford's  settlement,  so  called,  as  aforesaid. 

Art.  2.  For  and  in  consideration  of  the  relinquishment  and  cession,  as  express* 
ed  in  the  first  article,  the  United  States,  upon  signing  the  present  treaty,  shall 
cause  to  be  delivered  to  the  Cherokees,  useful  goods,  wares,  and  merchandize, 
to  the  amount  of  five  thousand  dollars,  or  that  sum  in  money,  at  the  option 
(timely  signified)  of  the  Cherokees,  and  shall,  also,  cause  to  be  delivered,  an- 
nually to  them,  other  useful  goods  to  the  amount  of  one  thousand  dollars,  or 
money  to  that  amount,  at  the  option  of  the  Cherokees,  timely  notice  thereof 
being  given,  in  addition  to  the  annuity  heretofore  stipulated,  and  to  be  delivered 
at  the  usual  time  of  their  receiving  their  annuity. 

RaUfied,  17th  May  1824. 


2  K 


APPENDIX,  No.  III. 


ACT  OF  CONGRESS  OF  THE  UNITED  STATES,  PASSED  MARCH  30, 

1802. 


j2«  act  to  regulate  trade  and  intercourse  with  the  India7i  tribes,  and  to  pre- 
serve peace  on  the  frontiers. 

Seclion  1.  Be  il  enacted,  &c.  That  the  following  boundary  line,  established 
by  treaty  between  the  United  States  and  various  Indian  tribes,  shall  be  clearlj 
ascertained,  and  distinctly  marked  in  all  such  places  as  the  president  of  the 
United  States  shall  deem  necessary,  and  in  such  manner  as  he  shall  direct,  to 
wit :  Beginning  at  the  mouth  of  the  Cayahoga  river  on  lake  Erie,  and  running 
thence,  up  the  same,  to  the  portage  between  that  and  the  Tuscaroras  branch  of 
the  Muskingum;  thence  down  that  branch  to  the  crossing  place  above  Fort  Law- 
rence; thence  westwardly,  to  a  fork  of  that  branch  of  the  Great  Miami  river 
running  into  the  Ohio;  at  or  near  which  fork  stood  Laromie's  store,  and  where 
commences  the  portage,  between  the  Miami  of  the  Ohio  and  St  Mary's  river, 
which  is  a  branch  of  the  Miami,  which  runs  into  lake  Erie;  thence,  a  westwardly 
course,  to  Fort  Recover j',  which  stands  on  a  branch  of  the  Wabash;  thence, 
southwestwardly,  in  a  direct  line  to  the  Ohio,  so  as  to  intersect  that  river  oppo- 
site the  mouth  of  Kentucky  or  Cuttawa  river;  thence,  down  the  said  ri.ver  Ohio, 
to  the  tract  of  one  hundred  and  fifty  thousand  acres,  near  the  rapids  of  the  Ohio, 
which  has  been  assigned  to  General  Clarke,  for  the  use  of  himself  and  his  war- 
riors; thence,  around  the  said  tract,  on  the  line  of  the  said  tract,  till  it  shall  again 
intersect  the  said  river  Ohio,  thence,  down  the  same,  to  a  point  opposite  the 
high  lands,  or  ridge,  between  the  mouth  of  the  Cumberland  and  Tennessee 
livers;  thence,  southeastwardly,  on  the  said  ridge,  to  a  point  from  whence  a 
southwest  line  will  strike  the  mouth  of  Duck  river;  thence,  still  eastwardly,  on 
the  said  ridge,  to  a  point  forty  miles  above  Nashville;  thence,  northeast,  to 
Cumberland  river;  thence,  up  the  said  river,  to  where  the  Kentucky  road  crosses 
the  same;  thence,  to  the  Cumberland  Mountain,  at  the  point  of  Campbell's  line; 
thence,  in  a  southwestwardly  direction,  along  the  foot  of  the  Cumberland  Moun- 
tain, to  Emory's  river;  thence,  down  the  same,  to  its  junction  with  the  river 
Clinch;  thence,  down  the  river  Clinch  to  Hawkins's  line;  thence,  along  the 
same  to  a  white  oak,  marked  one  mile  tree;  thence,  south,  fifty-one  degrees 
west,  three  hundred  and  twenty-eight  chains,  to  a  large  ash  tree  on  the  bank  of 
the  river  Tennessee,  one  mile  below  Southwest  Point;  thence,  up  the  north  east 
margin  of  the  river  Tennessee  (not  including  islands)  to  the  Wild  Cat  Rock, 
below  TcUico  block  house;  thence,  in  a  direct  line,  to  the  Militia  Spring,  near 


APPENDIX.  275 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

the  Maryville  road  leading  from  Tellico;  thence,  from  the  said  Spring  to  the 
Chilhowee  mountain,  by  a  line  so  to  be  run  as  will  leave  all  the  farms  on  Nine 
Mile  Creek  to  the  northward  and  eastward  of  it,  and  to  be  continued  along  the 
Chilhowee  mountain  until  it  strikes  Hawkins's  line;  thence,  along  the  said  line, 
to  the  great  Iron  Mountain;  and  from  the  top  of  which  a  line  to  be  continued, 
in  a  southeastwardiy  course,  to  where  the  most  southern  branch  of  Little  river 
crosses  the  divisional  line  to  Tugaloo  river;  thence,  along  the  South  Carolina 
Indian  boundary,  to  and  over  the  Ocunna  mountain,  in  a  southwest  course,  to 
Tugaloo  river;  thence,  in  a  direct  line,  to  the  top  of  Currahee  mountain,  where 
the  Creek  line  passes  it;  thence,  to  the  head  or  source  of  the  main  south  branch 
of  the  Oconee  river,  called  the  Appalachee;  thence,  down  the  middle  of  the  said 
main  south  branch  and  river  Oconee,  to  its  confluence  with  Oakmulgee,  which 
forms  the  river  Altaraaha;  thence,  down  the  middle  of  the  said  Altamaha,  to  the 
old  line  on  the  said  river;  and  thence,  along  the  said  old  line,  to  the  river  St 
Mary's:  Provided  always,  that  if  the  boundary  line  between  the  said  Indian 
tribes  and  the  United  States  shall,  at  any  time  hereafter,  be  varied  by  any 
treaty  which  shall  be  made  between  the  said  Indian  tribes  and  the  United 
States,  then  all  the  provisions  contained  in  this  act  shall  be  construed  to  apply 
to  the  said  line  so  to  be  varied,  in  the  same  manner  as  said  provisions  apply,  by 
force  of  this  act,  to  the  boundary  line  herein  before  recited. 

Sect.  2.  That  if  any  citizen  of,  or  other  person  resident  in,  the  United  States, 
or  either  of  the  territorial  districts  of  the  United  States,  shall  cross  over,  or  go 
within,  the  said  boundary  line,  to  hunt,  or  in  any  wise  destroy  the  game;  or  shall 
drive,  or  otherwise  convey,  any  stock  of  horses  or  cattle,  to  range  on  any  lands 
allotted  or  secured,  by  treaty  with  the  United  States,  to  any  Indian  tribes,  he 
shall  forfeit  a  sura  not  exceeding  one  hundred  dollars,  or  be  imprisoned  not  ex- 
ceeding six  months. 

Sect.  3.  That  if  any  such  citizen,  or  other  person,  shall  go  into  any  country 
which  is  allotted  or  secured,  by  treaty,  as  aforesaid,  to  any  of  the  Indian  tribes 
south  of  the  river  Ohio,  without  a  passport  first  had  and  obtained  from  the  gov- 
ernor of  some  one  of  the  United  States,  or  the  officer  of  the  troops  of  the  United 
States  commanding  at  the  nearest  post  on  the  frontiers,  or  such  other  person  as 
the  president  of  the  United  States  may,  from  time,  authorize  to  grant  the  same, 
shall  forfeit  a  sum  not  exceeding  fifty  dollars,  or  be  imprisoned  not  exceeding 
three  months. 

Sect.  4.  That  if  any  such  citizen,  or  other  person,  shall  go  into  any  town, 
settlement,  or  territory,  belonging,  or  secured,  by  treaty  with  the  United  States, 
to  any  nation  or  tiibe  of  Indians,  and  shall  there  commit  robbery,  larceny,  tres- 
pass, or  other  crime,  against  the  person  or  property  of  any  friendly  Indian  or  In- 
dians, which  would  be  punishable,  if  committed  within  the  jurisdiction  of  any 
state  against  a  citizen  of  the  United  States;  or,  unauthorized  by  law,  and  with  a 
hostile  intention,  shall  be  found  on  any  Indian  land,  such  offender  shall  forfeit  a 
sum  not  exceeding  one  hundred  dollars,  and  be  imprisoned  not  exceeding 
twelve  months;  and  shall  also,  when  property  is  taken  or  destroyed,  forfeit  and 
pay,  to  such  Indian  or  Indians,  to  whom  the  property  taken  and  destroyed  be- 
longs, a  sum  equal  to  twice  the  just  value  of  the  property  so  taken  or  destroyed: 
and  if  such  offender  shall  be  unable  to  pay  a  sum  at  least  equal  to  the  said  just 
value,  whatever  such  payment  shall  fall  short  of  the  said  just  value  shall  be  paid 
out  of  the  treasury  of  the  United  States:  Provided,  nevertheless,  that  no  such 
Indian  shall  be  entitled  to  any  payment  out  of  the  treasury  of  the  United  States, 
for  any  such  property  taken  or  destroyed,  if  he,  or  any  of  the  nation  to  which  he 


27(5  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

belongs,  shall  have  sought  private  revenge,  or  attempted  to  obtain  satisfaction 
by  any  force  or  violence. 

Sect.  5.  That  if  any  such  citizen,  or  other  person,  shall  make  a  settlement  on 
any  lands  belonging,  or  secured,  or  granted,  by  treaty  with  the  United  States,  to 
any  Indian  tribe,  or  shall  survey,  or  attempt  to  survey,  such  lands,  or  designate 
any  of  the  boundaries,  by  marking  trees,  or  otherwise,  such  offender  shall  forfeit 
a  sum  not  exceeding  one  thousand  dollars,  and  suffer  imprisonment,  not  exceed- 
ing twelve  months.  And  it  shall,  moreover,  be  lawful  for  the  president  of  the 
United  States  to  take  such  measures,  and  to  employ  such  military  force,  as  he 
may  judge  necessary,  to  remove  from  lands,  belonging,  or  secured  by  treaty,  as 
aforesaid,  to  any  Indian  tribe,  any  such  citizen,  or  other  person,  who  has  made, 
or  shall  hereafter  make,  or  attempt  to  make,  a  settlement  thereon. 

Sect.  6.  That  if  any  such  citizen,  or  other  person,  shall  go  into  any  town,  set- 
tlement, or  territory,  belonging  to  any  nation  or  tribe  of  Indians,  and  shall  there 
commit  murder,  by  killing  any  Indian  or  Indians,  belonging  to  any  nation  or  tribe 
of  Indians  in  amity  with  the  United  States,  such  offender,  on  being  thereof  con- 
victed, shall  suffer  death. 

Sect.  7.  That  no  such  citizen,  or  other  person,  shall  be  permitted  to  reside  at 
any  of  the  towns,  or  hunting  camps,  of  any  of  the  Indian  tribes,  as  a  trader,  with- 
out a  license  under  the  hand  and  seal  of  the  superintendent  of  the  department, 
or  of  such  other  person  as  the  president  of  the  United  States  shall  authorize  to 
grant  licenses  for  that  purpose:  which  superintendent,  or  person  authorized,  shall, 
on  application,  issue  such  license,  for  a  term  not  exceeding  two  years,  to  such 
trader,  who  shall  enter  into  bond,  with  one  or  more  sureties,  approved  of  by  the 
superintendent,  or  person  issuing  such  license,  or  by  the  president  of  the  United 
States,  in  the  penal  sum  of  one  thousand  dollars,  conditioned  for  the  true  and 
faithful  observance  of  such  regulations  and  restrictions  as  are,  or  shall  be,  made 
for  the  government  of  trade  and  intercourse  with  the  Indian  tiibes:  and  the  su- 
perintendent, or  person  issuing  such  license,  shall  have  full  power  and  authority 
to  recal  the  same,  if  the  person  so  licensed  shall  transgress  any  of  the  regulations 
or  restrictions  provided  for  the  government  of  trade  and  intercourse  with  the  In- 
dian tribes,  and  shall  put  in  suit  such  bonds  as  he  may  have  taken,  on  the  breach 
of  any  condition  therein  contained. 

Sect.  8.  That  any  such  citizen,  or  other  person,  who  shall  attempt  to  reside 
in  any  town  or  hunting  camp,  of  any  of  the  Indian  tribes,  as  a  trader,  without  such 
license,  shall  forfeit  all  the  merchandise  offered  for  sale  to  the  Indians,  or  found 
in  his  possession,  and  shall,  moreover,  be  liable  to  a  fine,  not  exceeding  one  hun- 
dred dollars,  and  to  imprisonment,  not  exceeding  thirty  days. 

Sect.  9.  That  if  any  such  citizen,  or  other  person,  shall  purchase,  or  receive, 
of  any  Indian,  in  the  way  of  trade  or  barter,  a  gun,  or  other  article  commonly 
used  in  hunting,  any  instrument  of  husbandry,  or  cooking  utensil,  of  the  kind 
usually  obtained  by  the  Indians,  in  their  intercourse  with  white  people,  or  any 
article  of  clothing,  excepting  skins  or  furs,  he  shall  forfeit  a  sum  not  exceeding 
fifty  dollars,  and  be  imprisoned  not  exceeding  thirty  days. 

Sect.  10.  That  no  such  citizen,  or  other  person,  shall  be  permitted  to  pur- 
chase any  horse  of  an  Indian,  or  of  any  white  man  in  the  Indian  territory,  without 
special  license  for  that  purpose;  which  license  the  superintendent,  or  such  other 
person  as  the  president  shall  appoint,  is  hereby  authorized  to  grant,  on  the  same 
terms,  conditions,  and  restrictions,  as  other  licenses  are  to  be  granted  under  this 
act:  and  any  such  person,  who  shall  purchase  a  horse  or  horses,  under  such  li- 
cense, before  he  exposes  such  horse  or  horses  for  sale,  and  within  fifteen  days 


APPENDIX.  277 

[The  Cherokee  Nalion  t»s.The  State  of  Georgia.] 

after  they  have  been  brought  out  of  the  Indian  country,  shall  make  a  particular 
return  to  the  superintendent,  or  other  person,  from  whom  he  obtained  his  license, 
of  every  horse  purchased  by  him,  as  aforesaid;  describing  such  horses,  by  their 
colour,  height,  and  other  natural  or  artificial  marks,  under  the  penalty  contained  in 
their  respective  bonds.  And  every  such  person,  purchasing  a  hoise  or  horses,  as 
aforesaid,  in  the  Indian  country,  without  a  special  license,  shall,  for  every  horse 
thus  purchased  and  brought  into  any  settlement  of  citizens  of  the  United  States, 
forfeit  a  sum  not  exceeding  one  hundred  dollars,  and  be  imprisoned  not  exceed- 
ing thirty  days.  And  every  person  who  shall  purchase  a  horse,  knowing  him  to 
be  brought  out  of  the  Indian  territory,  by  any  person  or  persons  not  licensed  as 
above  to  purchase  the  same,  shall  forfeit  the  value  of  such  horse. 

Sect.  11.  That  no  agent,  superintendent,  or  other  person,  authorized  to  grant 
a  license  to  trade,  or  purchase  horses,  shall  have  any  interest  or  concern  in  any 
trade  with  the  Indians,  or  in  the  purchase  or  sale  of  any  horse  to,  or  from,  any 
Indian,  excepting  for  and  on  account  of  the  United  States:  and  any  person  of- 
fending herein  shall  forfeit  a  sum  not  exceeding  one  thousand  dollars,  and  be 
imprisoned  not  exceeding  twelve  months. 

Sect.  12.  That  no  purchase,  grant,  lease,  or  other  conveyance,  of  lands,  or  of 
any  title  or  claim  thereto,  from  any  Indian,  or  nation,  or  tribe  of  Indians,  within 
the  bounds  of  the  United  States,  shall  be  of  any  validity,  in  law  or  equity,  unless 
the  same  be  made  by  treaty  or  convention,  entered  into  pursuant  to  the  consti- 
tution: and  it  shall  be  a  misdemeanour  in  any  person  not  employed  under  the 
authority  of  the  United  States,  to  negotiate  such  treaty  or  convention,  directly 
or  indirectly,  to  treat  with  any  such  Indian  nation,  or  tribe  of  Indians,  for  the 
title  or  purchase  of  any  lands  by  them  held  or  claimed,  punishable  by  fine,  not 
exceeding  one  thousand  dollars,  and  imprisonment  not  exceeding  twelve  months: 
Provided,  nevertheless,  that  it  shall  be  lawful  for  the  agent  or  agents  of  any  state, 
who  may  be  present  at  any  treaty  held  with  Indians  under  the  authority  of  the 
United  States,  in  the  presence  and  with  the  approbation  of  the  commissioner  or 
commissioners  of  the  United  States  appointed  to  hold  the  same,  to  propose  to, 
and  adjust  with,  the  Indians,  the  compensation  to  be  made  for  their  claims  to 
lands  within  such  state  which  shall  be  extinguished  by  the  treaty. 

Sect.  13.  That  in  order  to  promote  civilization  among  the  friendly  Indian 
tribes,  and  to  secure  the  continuance  of  their  friendship,  it  shall  be  lawful  for  the 
president  of  the  United  States  to  cause  them  to  be  furnished  with  useful  domes- 
tic animals,  and  implements  of  husbandry,  and  with  goods  or  money,  as  he  shall 
judge  proper,  and  to  appoint  such  persons,  from  time  to  time,  as  temporary  agents, 
to  reside  among  the  Indians,  as  he  shall  think  fit:  Provided,  that  the  whole 
amount  of  such  presents,  and  allowance  to  such  agents,  shall  not  exceed  fifteen 
thousand  dollars  per  annum. 

Sect.  14.  That  if  any  Indian  or  Indians,  belonging  to  any  tribe  in  amity  with 
the  United  States,  shall  come  over  across  the  said  boundary  line,  into  any  state 
or  territory  inhabited  by  citizens  of  the  United  States,  and  there  take,  steal,  or 
destroy,  any  horse,  horses,  or  other  property  belonging  to  any  citizen  or  inhabit- 
ant of  the  United  States,  or  of  either  of  the  territorial  districts  of  the  United 
States,  or  shall  commit  any  murder,  violence,  or  outrage,  upon  any  such  citizen 
or  inhabitant,  it  shall  be  the  duty  of  such  citizen  or  inhabitant,  his  representa- 
tive, attorney,  or  agent,  to  make  application  to  the  superintendent,  or  such  other 
person  as  the  president  of  the  United  States  shall  authorize  for  that  purpose;  who 
upon  being  furnished  with  the  necessary  documents  and  proofs,  shall,  under  the 
direction  or  instruction  of  the  president  of  the  United  States,  make  application  to 


278  APPENDIX. 

[The  Cherokee  Nation  vs.  The  Stale  of  Georgia.]' 

the  nation  or  tribe  to  which  such  Indian  or  Indians  shall  belong,  for  satisfaction; 
and  if  such  nation  or  tribe  shall  neglect  or  refuse  to  make  satisfaction  in  a  rea- 
sonable time,  not  exceeding  twelve  months,  then  it  shall  be  the  duty  of  such  su- 
perintendent, or  other  person  authorized  as  aforesaid,  to  make  return  of  his  doings 
to  the  president  of  the  United  States,  and  forward  to  him  all  the  documents  and 
proofs  in  the  case,  that  such  further  steps  may  be  taken  as  shall  be  proper  to  ob- 
tain satisfaction  for  the  injury:  and,  in  the  mean  time,  in  respect  to  the  property 
so  taken,  stolen,  or  destroyed,  the  United  States  guaranty  to  the  party  injured  an 
eventual  indemnification:  Provided,  always,  that  if  such  injured  party,  his  repre- 
sentative, attorney,  or  agent,  shall,  in  any  way,  violate  any  of  the  provisions  of 
this  act,  by  seeking,  or  attempting  to  obtain,  private  satisfaction  or  revenge,  by 
crossing  over  the  line,  on  any  of  the  Indian  lands,  he  shall  forfeit  all  claim  upon 
the  United  States  for  such  indemnification:  And  provided,  also,  that  nothing  herein 
contained  shall  prevent  the  legal  apprehension  or  arresting,  within  the  limits  of 
any  state  or  district,  of  any  Indian  having  so  offended:  And  provided,  further, 
that  it  shall  be  lawful  for  the  president  of  the  United  States  to  deduct  such  sum 
or  sums,  as  shall  be  paid  for  the  property  taken,  stolen,  or  destroyed,  by  any  such 
Indian,  out  of  the  annual  stipend  which  the  United  Stales  are  bound  to  pay  to 
the  tribe  to  which  such  Indian  shall  belong. 

Sect.  15.  That  the  superior  courts  in  each  of  the  said  territorial  districts,  and 
the  circuit  courts,  and  other  courts  of  the  United  States  of  similar  jurisdiction  in 
criminal  causes,  in  each  district  of  the  United  States,  in  which  any  oiTeuder 
against  this  act  shall  be  apprehended,  or,  agreeably  to  the  provisions  of  this  act, 
shall  be  brought  for  trial,  shall  have,  and  are  hereby  invested  with,  full  power 
and  authority  to  hear  and  determine  all  crimes,  offences,  and  misdemeanours, 
against  this  act;  such  courts  proceeding  therein  in  the  same  manner  as  if  such 
crimes,  offences,  and  misdemeanours,  had  been  committed  within  the  bounds  of 
their  respective  districts:  and  in  all  cases  where  the  punishment  shall  not  be 
death,  the  county  courts  of  quarter  sessions  in  the  said  territorial  districts,  and 
the  district  courts  of  the  United  States,  in  their  respective  districts,  shall  have, 
and  are  hereby  invested  with,  like  power  to  hear  and  determine  the  same,  any 
law  to  the  contrary  notwithstanding.  And  in  all  cases  where  the  punishment 
shall  be  death,  it  shall  be  lawful  for  the  governor  of  either  of  the  territorial  dis- 
tricts where  the  offender  shall  be  apprehended,  or  into  which  he  shall  be  brought 
for  trial,  to  issue  a  commission  of  oyer  and  terminer  to  the  superior  judges  of 
such  district,  who  shall  have  full  power  and  authority  to  hear  and  determine  all 
such  capital  cases,  in  the  same  manner  as  the  superior  courts  of  such  districts 
ha%'e  in  their  ordinary  sessions.  And  when  the  offender  shall  be  apprehended  or 
brought  for  trial  into  any  of  the  United  States,  except  Kentucky  or  Tennessee,  it 
shall  be  lawful  for  the  president  of  the  United  States  to  issue  a  like  commission 
to  any  one  or  more  judges  of  the  supreme  court  of  the  United  States,  and  the 
judge  of  the  district  in  which  such  offender  may  have  been  apprehended  or  shall 
have  been  brought  for  trial;  which  judges,  or  any  two  of  them,  shall  have  the 
same  jurisdiction,  in  such  capital  cases,  as  the  circuit  court  of  such  district,  and 
shall  proceed  to  tiial  and  judgment  in  the  same  manner  as  such  circuit  court 
might  or  could  do.  And  the  district  courts  of  Kentucky,  Tennessee,  and  Maine, 
shall  have  jurisdiction  of  all  crimes,  offences,  and  misdemeanours,  committed 
against  this  act,  and  shall  proceed  to  trial  and  judgment  in  the  same  manner  as 
the  circuit  courts  of  the  United  States. 

Sect.  16.  That  it  shall  be  lawful  for  the  military  force  of  the  United  States,  to 
apprehend  every  person  who  shall  or  may  be  found  in  the  Indian  country,  over 


APPENDIX.  279 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

and  beyond  the  said  boundary  line  between  the  United  States  and  the  said  In- 
dian tribes,  in  violation  of  any  of  the  provisions  or  regulations  of  this  act,  and 
him  or  them  immediately  to  convey,  in  the  nearest  convenient  and  safe  route,  to 
the  civil  authority  of  the  United  States,  in  some  one  of  the  three  next  adjoining 
states  or  districts,  to  be  proceeded  against  in  due  course  of  law:  Provided,  that 
no  person  apprehended  by  military  force,  as  aforesaid,  shall  be  detained  longer 
than  five  days  after  the  arrest,  and  before  removal.  And  all  otEcers  and  soldiers 
who  may  have  any  such  person  or  persons  in  custody,  shall  treat  them  with  all 
the  humanity  which  the  circumstances  will  possibly  permit;  and  every  officer  and 
soldier  who  shall  be  guilty  of  maltreating  any  such  person  while  in  custody,  shall 
suffer  such  punishment  as  a  court  martial  shall  direct:  Provided,  that  the  officer 
having  custody  of  such  person  or  persons  shall,  if  required  by  such  person  or 
persons,  conduct  him  or  them  to  the  nearest  judge  of  the  supreme  or  superior 
court  of  any  state,  who,  if  the  offence  is  bailable,  shall  take  proper  bail,  if  offered, 
returnable  to  the  district  court  next  to  be  holden  in  said  district;  which  bail  the 
said  judge  is  hereby  authorized  to  take,  and  which  shall  be  liable  to  be  estreated 
as  any  other  recognizance  for  bail  in  any  court  of  the  United  States;  and  if  said 
judge  shall  refuse  to  act,  or  the  person  or  persons  fail  to  procure  satisfactory  bail, 
then  the  said  person  or  persons  are  to  be  proceeded  with  according  to  the  direc- 
tions of  this  act. 

Sect.  17.  That  if  any  person  who  shall  be  charged  with  a  violation  of  any  of  the 
provisions  or  regulations  of  this  act,  shall  be  found  within  any  of  the  United  States, 
or  either  of  the  territorial  districts  of  the  United  States,  such  offender  may  be  there 
apprehended  and  brought  to  trial,  in  the  same  manner  as  if  such  crime  or  offence 
had  been  committed  within  such  state  or  district;  and  it  shall  be  the  duty  of  the 
military  force  of  the  United  States,  when  called  upon  by  the  civil  magistrate,  or 
any  proper  officer,  or  other  person  duly  authorized  for  that  purpose,  and  having  a 
lawful  warrant,  to  aid  and  assist  such  magistrate,  officer,  or  other  person  author- 
ized, as  aforesaid,  in  arresting  such  offender,  and  him  committing  to  safe  custody 
for  trial  according  to  law. 

Sect.  18.  That  the  gmount  of  fines,  and  duration  of  imprisonment,  directed  by 
this  act  as  a  punishment  for  the  violation  of  any  of  the  provisions  thereof,  shall 
be  ascertained  and  fixed,  not  exceeding  the  limits  prescribed,  in  the  discretion 
of  the  court  before  whom  the  trial  shall  be  had;  and  that  all  fines  and  forfeitures 
which  shall  accrue  under  this  act,  shall  be  one  half  to  the  use  of  the  informant, 
and  the  other  half  to  the  use  of  the  United  States:  except  where  the  prosecu- 
tion shall  be  first  instituted  on  behalf  of  the  United  States,  in  which  case  the 
whole  shall  be  to  their  use. 

Sect.  19.  That  nothing  in  this  act  shall  be  construed  to  prevent  any  trade 
or  intercourse  with  Indians  living  on  lands  surrounded  by  settlements  of  the 
citizens  of  the  United  States,  and  being  within  the  ordinary  jurisdiction  of  any 
of  the  individual  states;  or  the  unmolested  use  of  a  road  from  Washington  dis- 
trict to  Mero  district,  or  to  prevent  the  citizens  of  Tennessee  from  keeping  in 
repair  the  said  road,  under  the  direction  or  orders  of  the  governor  of  said  state, 
and  of  the  navigation  of  the  Tennessee  river,  as  reserved  and  secured  by  treaty; 
nor  shall  this  act  be  construed  to  prevent  any  person  or  persons  travelling  from 
Enoxville  to  Price's  settlement,  or  to  the  settlement  on  Obed's  river  (so  called), 
provided  they  shall  travel  in  the  trace  or  path  which  is  usually  travelled,  and 
provided  the  Indians  make  no  objection;  but  if  the  Indians  object,  the  president 
of  the  United  States  is  hereby  authorized  to  issue  a  proclamation,  prohibiting 
all  travelling  on  said  traces,  or  either  of  them,  as  the  case  may  be,  after  which 


280  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

the  penalties  of  this  act  shall  be  incurred  by  every  person  travelling  or  being 
found  on  said  traces,  or  either  of  them,  to  which  the  prohibition  may  apply  with- 
in the  Indian  boundary,  without  a  passport. 

Sect.  20.  That  the  president  of  the  United  States,  be,  and  he  is  hereby,  au- 
thorized to  cause  to  be  clearly  ascertained,  and  distinctly  marked,  in  all  such 
places  as  he  shall  deem  necessary,  and  in  such  manner  as  he  shall  direct,  any 
other  boundary  lines  between  the  United  States  and  any  Indian  tribe,  which 
now  are,  or  hereafter  may  be,  established  by  treaty. 

Sect.  21.  That  the  president  of  the  United  States  be  authorized  to  take  such 
measures,  from  time  to  time,  as  to  him  may  appear  expedient,  to  prevent  or  re- 
strain the  vending  or  distributing  of  spirituous  liquors  among  all  or  any  of  the 
said  Indian  tribes,  any  thing  herein  contained  to  the  contrary  thereof  notwith- 
standing. 

Sect.  22.  That  this  act  shall  be  in  force  from  the  passage  thereof;  and  so  far 
as  respects  the  proceedings  under  this  act,  it  is  to  be  understood  that  the  act,  en- 
titled "  an  act  to  amend  an  act,  entitled  '  an  act  giving  effect  to  the  laws  of 
the  United  States  within  the  district  of  Tennessee,' "  is  not  to  operate. 


# 


APPENDIX,  No.  IV. 


ACTS  OF  THE  LEGISLATURE  OF  GEORGIA. 


ACT  OF  20  DECEMBER  1828. 

j?n  act  to  add  the  territory  lying  within  the  limits  of  this  state,  and  occupied 
by  the  Cherokee  Indians,  to  the  counties  of  Carroll,  De  Kalb,  Gwinett, 
Hall  and  Habersham,  and  to  extend  the  laws  of  this  state  over  the  same, 
and  for  other  purposes. 

Sect.  1.  Be  it  enacted  by  the  senate  and  house  of  representatives  of  the  state 
of  Georgia,  in  general  assembly  met,  and  it  is  hereby  enacted  by  the  authority  of 
the  same;  that  from  and  after  the  passing  of  this  act,  all  that  part  of  the  territory 
within  the  limits  of  this  state,  and  which  lies  between  the  Alabama  line  and  the 
old  path  leading  from  the  Buzzard  roost,  on  the  Chattahoochee  river,  to  Sally 
Hughes's,  when  the  said  path  strikes  the  Alabama  road;  thence  with  said  road  to 
the  boundary  line  of  Georgia:  be,  and  the  same  is  hereby  added  to  and  shall 
become  a  part  of  the  county  of  Carroll. 

Sect.  2.  And  be  it  further  enacted,  that  all  that  part  of  the  said  territory  lying 
and  being  north  of  the  last  mentioned  line,  and  south  of  the  road  running  from 
Charles  Tate's  ferry,  on  Chattahoochee  river,  to  Dick  Roes,  to  where  it  inter- 
sects with  the  path  aforesaid:  be,  and  the  same  is  hereby  added  and  shall  be- 
come a  part  of  the  county  of  De  Kalb. 

Sect.  3.  And  be  it  further  enacted,  that  all  that  part  of  the  said  territory  lying 
north  of  the  last  mentioned  line,  and  south  of  the  old  federal  road,  be,  and  the 
same  is  hereby  added  and  shall  become  a  part  of  the  county  of  Gwinett. 

Sect.  4.  And  be  it  further  enacted,  that  all  that  part  of  the  said  territory  lying 
north  of  the  said  last  mentioned  line,  and  south  of  a  line  to  begin  on  the  Ches- 
tatee  river,  at  the  mouth  of  Yoholo  creek;  thence  up  said  creek  to  the  top  of  the 
Blue  Ridge;  thence  to  the  head  waters  of  Notlcy  river;  thence  down  said  river 
to  the  boundary  line  of  Georgia;  be,  and  the  same  is  hereby  added  to  and  shall 
become  a  part  of  the  county  of  Hall. 

Sect.  5.  And  be  it  further  enacted,  that  all  that  part  of  the  said  territory  lying 
north  of  the  last  mentioned  line,  within  the  limits  of  Georgia,  be,  and  the  same  is 
hereby  added  to  and  shall  become  a  part  of  the  county  of  Habersham. 

Sect.  6.  And  be  it  further  enacted,  that  all  the  laws  of  this  state  be,  and  the 
same  are  hereby  extended  over  said  territory;  and  all  white  persons  residing 
within  the  same  shall,  immediately  after  the  passage  of  this  act,  be  subject  and 
liable  to  the  operation  of  the  said  laws  in  the  same  manner  as  other  citizens  of 
the  state,  or  the  citizens  of  said  counties  respectively. 
2L 


282  APPENDIX. 

LThe  Cherokee  Nation  vs.  The  State  of  Georgia.] 
Sect.  7.  And  be  it  further  enacted,  that  after  the  first  day  of  June  eighteen 
hundred  and  thirty,  ail  Indians  then  and  at  that  time  residing  in  said  territory,  and 
within  any  one  of  the  counties  as  aforesaid,  shall  be  liable  and  subject  to  such 
laws  and  regulations  as  the  legislature  may  hereafter  prescribe. 

Sect.  S.  And  be  it  further  enacted,  that  all  laws,  usages,  and  customs,  made, 
established,  and  enforced  in  the  said  territory,  by  the  said  Cherokee  Indians,  be, 
nnd  the  same  are  hereby  on  and  after  the  fust  of  June  eighteen  hundred  and 
thirty,  declared  null  and  void. 

Sect.  9.  And  be  it  further  enacted,  that  no  Indian  or  descendant  of  an  Indian, 
residing  within  the  Creek  or  Cherokee  nations  of  Indians,  shall  be  deemed  a 
competent  witness  or  party  to  any  suit  in  any  court  created  by  the  constitution 
or  laws  of  this  state  to  which  a  white  man  may  be  a  party. 

IRLEY   HUDSON, 

Speaker  of  the  house  of  representatives 

THOMAS   STOCKS, 


President  of  the  senate. 


Assented  to  December  20,  1828. 
JOHN  FORSYTH, 

Governor. 


ACT  OF  19  DECEMBER  1829. 

Jin  act  to  add  the  territory  lying  within  the  chartered  limits  of  Georgia,  and 
now  in  the  occupancy  of  the  Cherokee  Indians,  to  the  counties  of  Carrolh 
De  Kalh,  Gwinett,  Hall  and  Habersham,  and  to  extend  the  laws  of  this 
state  over  the  same,  and  to  annul  all  laws  and  ordinances  made  by  the 
Cherokee  nation  of  Indians,  and  to  provide  for  the  compensation  of  officers 
serving  legal  process  in  said  territory,  and  to  regulate  the  testimony  of  In- 
dians, and  to  repeal  the  7iinth  section  of  the  act  of  eighteen  hundred  and 
twenty-eight  upon  this  subject. 

Sect.  1.  Be  it  enacted  by  the  senate  and  house  of  representatives  of  the  state 
of  Georgia,  in  general  assembly  met,  and  it  is  hereby  enacted  by  the  authority  of 
the  same;  that  from  and  after  the  passing  of  this  act,  all  that  part  of  the  unlocated 
territory  within  the  limits  of  this  state,  and  which  lies  between  the  Alabama  line 
and  the  old  path  leading  from  the  Buzzard  roost  on  the  Chattahoochee,  to  Sally 
Hughes's,  on  the  Hightower  river,  thence  to  Thomas  Pelets,  on  the  old  federal 
road,  thence  with  said  road  to  the  Alabama  line:  be,  and  the  same  is  hereby 
added  to  and  shall  become  a  part  of  the  county  of  Carroll. 

Sect.  2.  And  be  it  further  enacted,  that  all  that  part  of  said  territory  lying  and 
being  north  of  the  last  mentioned  line,  and  south  of  the  road  running  from 
Charles  Gait's  ferry  on  the  Chattahoochee  river  to  Dick  Roes,  to  where  it  inter- 
sects with  the  path  aforesaid:  be,  and  the  samels  ner^y  added  to  and  shall 
become  a  part  of  the  county  of  De  Kalb. 

Sect.  3.  And  be  it  further  enacted,  that  all  that  part  of  said  territory  lying 
north  of  the  last  mentioned  line,  and  south  of  a  line  commencing  at  the  mouth 
of  Baldridge's  creek,  thence  up  said  creek  to  its  source;  from  thence  to  where  the 
federal  road  crosses  the  Hightower;  thence  with  said  road  to  the  Tennessee  line: 
be,  and  the  same  is  hereby  added  to  and  shall  become  a  part  of  the  county  of 
Gwinett, 


APPENDIX.  283 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

Sect.  4.  And  be  it  further  enacted,  that  all  that  part  of  said  territory  lying 
north  of  said  last  mentioned  line,  and  south  of  a  line  to  commence  on  the  Ches- 
tatee  river,  at  the  mouth  ofYoholo  creek,  thence  up  said  creek  to  the  top  of  the 
Blue  ridge;  thence  to  the  head  waters  of  Notley  river;  thence  down  said  river  to 
the  boundary  line  of  Georgia:  be,  and  the  same  is  hereby  added  to  and  shall  be- 
come a  part  of  the  county  of  Hall. 

Sect.  5.  And  be  it  further  enacted,  that  all  that  part  of  said  territory  lying 
north  of  said  last  mentioned  line,  within  the  limits  of  this  state,  be,  and  the 
same  is  hereby  added  to  and  shall  become  a  part  of  the  county  of  Habersham. 

Sect.  6.  And  be  it  further  enacted,  that  all  the  laws,  both  civil  and  criminal, 
of  this  state,  be,  and  the  same  are  hereby  extended  over  said  portions  of  terri- 
tory respectively;  and  all  persons  whatever  residing  within  the  same,  shall,  after 
the  first  day  of  June  next,  be  subject  and  liable  to  the  operation  of  said  laws  in 
the  same  manner  as  other  citizens  of  this  state,  or  the  citizens  of  said  counties 
respectively;  and  all  writs  and  processes  whatever,  issued  by  the  courts  or  officers 
of  said  courts,  shall  extend  over  and  operate  on  ihe  portions  of  territory  hereby 
added  to  the  same  respectively. 

Sect.  7.  And  be  it  further  enacted,  that  after  the  first  day  of  June  next,  all 
laws,  ordinances,  orders  and  regulations,  of  any  kind  whatever,  made,  passed, 
or  enacted  by  the  Cherokee  Indians,  either  in  general  council  or  in  any  other 
way  whatever,  or  by  any  authority  whatever  of  said  tribe,  be,  and  the  same  are 
hereby  declared  to  be  null  and  void  and  of  no  effect,  as  if  the  same  had  never 
existed;  and  in  all  cases  of  indictment  or  civil  suits,  it  shall  not  be  lawful  for  the 
defendant  to  justify  under  any  of  said  laws,  ordinances,  orders,  or  regulations;  nor 
shall  the  courts  of  this  state  permit  the  same  to  be  given  in  evidence  on  the  trial 
of  any  suit  whatever. 

Sect.  8.  And  be  it  further  enacted,  that  it  shall  not  be  lawful  for  any  person  or 
body  of  persons,  by  arbitrary  power  or  by  virtue  of  any  pretended  rule,  ordinance, 
law  or  custom  of  said  Cherokee  nation,  to  prevent  by  threats,  menaces,  or  other 
means,  to  endeavour  to  prevent  any  Indian  of  said  nation  residing  within  the 
chartered  limits  of  this  state,  from  enrolling  as  an  emigrant,  or  actually  emigrating 
or  removing  from  said  nation;  nor  shall  it  be  lawful  for  any  person  or  body  of 
persons,  by  arbitrary  power  or  by  virtue  of  any  pretended  rule,  ordinance,  law  or 
custom  of  said  nation,  to  punish  in  any  manner,  or  to  molest  either  the  person  or 
property,  or  to  abridge  the  rights  or  privileges  of  any  Indian  for  enrolling  his  or 
her  name  as  an  emigrant,  or  for  emigrating  or  intending  to  emigrate  from  said 
nation. 

Sect.  9.  And  be  it  further  enacted,  that  any  person  or  body  or  persons  offending 
against  the  provisions  of  the  foregoing  section,  shall  be  guilty  of  a  high  misde- 
meanour, subject  to  indictment,  and  on  conviction  shall  be  punished  by  confine- 
ment in  the  common  jail  of  any  county  of  this  state,  or  by  confinement  at  hard 
labour  in  the  penitentiary,  for  a  term  not  exceeding  four  years,  at  the  discretion  of 
the  court. 

Sect.  10.  And  be  it  further  enacted,  that  it  shall  not  be  lawful  for  any  person 
or  body  of  persons,  by  arbitrary  power,  or  under  colour  of  any  pretended  rules 
ordinance,  law  or  custom  of  said  nation,  to  prevent  or  offer  to  prevent,  or  defer 
any  Indian  head  man,  chief  or  warrior  of  said  nation,  residing  within  the  chartered 
limits  of  this  state,  from  selling  or  ceding  to  the  United  States  for  the  use  of 
Georgia,  the  whole  or  any  part  of  said  territory,  or  to  prevent  or  offer  to  prevent 
any  Indian  head  man,  chief  oi  warrior,  of  said  nattou,  residing  as  aforesaid,  from 


284  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

meeting  in  council  or  treaty,  any  commissioner  or  commissioners  on  the  part  of 
the  United  Stales,  for  any  purpose  whatever. 

Sect.  11.  And  be  it  further  enacted,  that  any  person  or  body  of  persons  offending 
against  the  provisions  of  the  foregoing  sections,  shall  be  guilty  of  a  high  misde- 
meanour, subject  to  indictment,  and  on  conviction  shall  be  confined  at  hard  labour 
in  the  penitentiary  for  not  less  than  four  nor  longer  than  six  years,  at  the  discre- 
tion of  the  court. 

Sect.  12.  And  be  it  further  enacted,  that  it  shall  not  be  lawful  for  any  person 
or  body  of  persons,  by  arbitrary  force  or  under  colour  of  any  pretended  rules,  ordi- 
nances, law,  or  custom  of  said  nation,  to  take  the  life  of  any  Indian  residing  as 
aforesaid,  for  enlisting  as  an  emigrant;  attempting  to  emigrate;  ceding  or  at- 
tempting to  cede,  as  aforesaid,  the  whole  or  any  part  of  said  territory;  or  meet- 
ing or  attempting  to  meet  in  treaty  or  in  council,  as  aforesaid,  any  commissioner 
or  commissioners  as  aforesaid;  and  any  person  or  body  of  persons  oflFending 
against  the  provisions  of  this  section  shall  be  guilty  of  murder,  subject  to  indict- 
ment, and  on  conviction  shall  suffer  death  by  hanging. 

Sect.  13.  And  be  it  further  enacted,  that  should  any  of  the  foregoing  offences 
be  committed  under  colour  of  any  pretended  rules,  ordinances,  custom,  or  law 
of  said  nation,  all  persons  acting  therein,  either  as  individuals  or  as  pretended 
executive,  ministerial  or  judicial  ofiQcers,  shall  be  deemed  and  considered  as  prin- 
cipals, and  subject  to  the  pains  and  penalties  herein  before  described. 

Sect.  14.  And  be  it  further  enacted,  that  for  all  demands  which  may  come 
within  the  jurisdiction  of  a  magistrate's  court  suit  may  be  brought  for  the  same 
in  the  nearest  district  of  the  county  to  which  the  territory  is  hereby  annexed,  and 
all  ofiQcers  serving  any  legal  process  on  any  person  living  on  any  portion  of  the 
territory  herein  named  shall  be  entitled  to  recover  the  sum  of  five  cents  for  every 
mile  he  may  ride  to  serve  the  same  after  crossing  the  present  limits  of  said  coun- 
ties, in  addition  to  the  fees  already  allowed  by  law;  and  in  case  any  of  said  oflS- 
cers  should  be  resisted  in  the  execution  of  any  legal  process  issued  by  any  court 
or  magistrate,  justice  of  the  inferior  court,  or  judge  of  the  superior  court  of  any 
of  said  counties,  he  is  hereby  auchorised  to  call  out  a  sufficient  number  of  the 
militia  of  said  counties  to  aid  and  protect  him  in  the  execution  of  this  duty. 

Sect.  15.  And  be  it  further  enacted,  that  no  Indian  or  descendant  of  any  In- 
dian, residing  within  the  Creek  or  Cherokee  nations  of  Indians,  shall  be  deemed 
a  competent  witness  in  any  court  of  this  state  to  which  a  white  person  may  be  a 
party,  except  such  white  person  resides  within  the  said  nation. 

WARREN  JOURDAN, 
Speaker  of  the  house  of  representatives' 
THOMAS  STOCKS, 
President  of  the  senate. 

Assented  to  19  December  1829. 
GEORGE  R.  GILMER, 
Governor. 


APPENDIX.  285 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 


Jit  the  session  of  the  legislature  of  the  state  of  Georgia  in  1830,  laws  were 
passed  relating  to  the  Cherokee  country,  copies  of  which  could  not  be  pro- 
cured,  although  diligent  efforts  have  been  made  to  obtain  them.  The  fol- 
lowing statement  of  these  acts  and  of  their  purposes  is  abstracted  from  the 
supplemental  bill,  ante  page  82. 

'  *'An  act  to  authorize  the  survey  and  disposition  of  lands  within  the  limits  of 
Georgia,  in  the  occupancy  of  the  Cherokee  tribe  of  Indians,  and  all  other  unlo- 
cated  lands  within  the  limits  of  the  said  state,  claimed  as  Creek  land;  and  to 
authorize  the  governor  to  call  out  the  military  force  to  protect  surveyors  in  the 
discharge  of  their  duties;  and  to  provide  for  the  punishment  of  persons  who  may 
prevent,  or  attempt  to  prevent,  any  surveyor  from  performing  his  duties,  as  point- 
ed out  by  this  act,  or  who  shall  wilfully  cut  down  or  deface  any  marked  trees, 
or  remove  any  land-marks  which  may  be  made  in  pursuance  of  this  act;  and  to 
protect  the  Indians  in  the  peaceable  possession  of  their  improvements,  and  of  the 
lots  on  which  the  same  may  be  situate." 

This  act  received  the  assent  of  the  governor  of  the  state  on  the  21st  Decern* 
ber  1830;  and  by  its  provisions  surveyors  are  authorized  to  be  appointed  to  go 
on  the  territory  occupied  by  the  Cherokees  and  all  other  unlocated  land,  within 
the  limits  of  the  state  claimed  as  Creek  land,  and  to  lay  it  off  into  districts  and 
sections,  which  are  to  be  distributed  by  lottery  among  the  people  of  Georgia,  re- 
serving the  present  occupancy  of  such  improvements  as  the  individuals  of  the 
Cherokee  nation  reside  upon,  with  the  lots  on  which  such  improvements  stand, 
and  excepting  from  such  reservations  such  improvements  as  the  Cherokees  may 
have  recently  made  near  the  gold  mines. 

"  An  act  to  declare  void  all  contracts  hereafter  made  with  the  Cherokee  In- 
dians, so  far  as  the  Indians  are  concerned;"  which  act  received  the  assent  of  the 
governor  of  the  slate  on  the  23d  December  1830. 

By  this  act  it  is  declared  that  no  Cherokee  shall  be  bound  by  any  contract 
thereafter  to  be  entered  into  with  a  white  person  or  persons,  nor  be  liable  to  be 
sued  in  any  of  the  courts  of  law  or  equity  of  the  state  on  such  contract. 

•'An  act  to  provide  for  the  temporary  disposal  of  the  improvements  and  poss- 
essions purchased  from  certain  Cherokee  Indians  and  residents;"  which  act  re- 
ceived the  assent  of  the  governor  of  the  state  on  the  22d  December  1830. 

By  this  act  the  governor  of  the  state  is  authorized  to  take  possession  of  improve- 
ments, under  a  treaty  of  the  6th  May  1828,  which  was  made  between  the  Che- 
rokee Indians  west  of  the  Mississippi  and  the  United  States.  By  the  same  act 
the  governor  is  authorized  to  take  possession  of  other  improvements  claimed  by 
Georgia  under  other  treaties. 

"An  act  to  prevent  the  exercise  of  assumed  and  arbitrary  power  by  all  per- 
sons under  pretext  of  authority  from  the  Cherokee  Indians  and  their  laws,  and 
to  prevent  white  persons  from  residing  within  that  part  of  the  chartered  limits 
of  Georgia  occupied  by  the  Cherokee  Indians,  and  to  provide  a  guard  for  the 
protection  of  the  gold  mines,  and  to  enforce  the  laws  of  the  slate  within  the 
aforesaid  territory." 

This  act  received  the  assent  of  the  governor   cf  the  state  on  the  22d  Decern 


28fi  APPENDIX. 

[The  Cherokee  Nation  vs.  The  State  of  Georgia.] 

ber  1830.  By  this  act  it  is  made  a  high  misJemeanour  punishable  by  imprison- 
ment in  the  penitentiary,  at  hard  labour,  for  four  years,  for  the  Cherokees  to  call 
a  council  or  legislative  assembly  in  their  territory,  under  their  constitution  and 
laws,  or  to  hold  such  council  or  assembly,  or  to  hold  any  court  or  tribunal 
whatever,  or  to  serve  process  or  execute  the  judgments  of  their  own  courts, 
with  various  other  provisions  of  a  like  character.  White  persons  are  excluded 
from  the  territory,  unless  they  go  under  a  license  from  the  governor  of  the  state, 
and  take  the  oath  of  allegiance  to  the  state  of  Georgia,  when  they  are  authorized 
to  reside  within  the  limits  of  the  Cherokees.  The  turnpike  roads  and  toll 
bridges  erected  by  the  Cherokees  are  abolished.  And  the  governor  is  author- 
ized to  station  an  armed  military  force  in  the  territory  to  guard  the  gold  mines 
in  the  country  of  the  Cherokees,  to  which  the  state  of  Georgia  asserts  an 
exclusive  right,  and  to  enforce  the  laws  of  Georgia  upon  them. 

"  An  act  to  authorize  the  governor  to  take  possession  of  the  gold,  silver,  and 
other  mines,  lying  and  being  in  that  section  of  the  chartered  limits  of  Georgia, 
commonly  called  the  Cherokee  country,  and  those  upon  all  other  unappropriated 
lands  of  the  state,  and  for  punishing  any  person  or  persons  who  may  hereafter  be 
found  trespassing  upon  the  mines." 

This  act  received  the  assent  of  the  governor  of  the  state  on  the  2d  of  Decem- 
ber 1830.  By  the  preamble  to  this  act,  the  title  to  the  mines  in  the  Cherokee 
country  is  asserted  to  be  in  the  state  of  Georgia.  By  its  provisions  twenty 
thousand  dollars  are  appropriated,  and  placed  at  the  disposal  of  the  governor,  to 
enable  him  to  take  possession  of  these  mines;  and  it  is  made  a  crime  in  the 
Cherokees,  punishable  by  imprisonment  in  the  penitentiary  of  Georgia,  at  hard 
labour,  for  four  years,  to  work  those  mines. 


THE  END. 


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